A. Except as otherwise provided in this section, service of a garnishment on the garnishee has the effect of attaching all personal property, money, wages or salary in excess of the amount exempt under Section 35-12-7 NMSA 1978, rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in the garnishee's possession or under his control at the time of service of the garnishment or which may come into his possession or under his control or be owing by him between the time of service and the time of making his answer. The garnishee is not liable for any judgment in money on account of any bonds, bills, notes, drafts, checks or other choses in action unless they are converted into money after service of the garnishment or he fails to deliver them to the magistrate within the time prescribed by the magistrate.
B. Service of a garnishment issued in advance of judgment does not attach any wages or salary due the defendant from the garnishee.
C. After service of a garnishment on the garnishee, it is unlawful for the garnishee to pay to the defendant in the action any debt or to deliver to him any personal property attached by the garnishment.
History: 1953 Comp., § 36-14-3, enacted by Laws 1968, ch. 62, § 135; 1969, ch. 139, § 4.
ANNOTATIONSRepeals. — Laws 1968, ch. 62, § 171, repealed former 36-14-3, 1953 Comp., relating to requiring bond for assault or threat in presence of justice, effective January 1, 1969.
The garnishor/judgment creditor acquires the judgment debtor's right of action against the garnishee. — The effect of garnishment is that the garnishor/judgment creditor is subrogated to the rights of the judgment debtor as against the garnishee, and the garnishor/judgment creditor cannot prevail against the garnishee unless the judgment debtor could do so. The primary test for whether garnishment is appropriate is whether the judgment debtor has a valid right of action against the garnishee for the subject sought to be garnished. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
To be garnishable, the subject of garnishment must be mature, and not subject to any contingency or defense. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
Garnishment not preempted by ERISA. — The federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (2000), does not preempt or preclude a state law garnishment action against an ERISA insurer to enforce a judgment entered against an ERISA Plan. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
Garnishment against insurer of long-term disability plan to satisfy a judgment against an insured ERISA plan. — Garnishment is an appropriate mechanism to enforce a money judgment against a plan covered by the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (2000), where the subject of garnishment is an insurance policy obligating the insurer to pay disability benefits directly to eligible plan beneficiaries. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
Garnishment against insurer of long-term disability plan. — Plaintiff's employer established a long-term disability plan that was funded by an insurance policy issued by the defendant; defendant acted as the claims fiduciary of the plan; defendant denied plaintiff's claim for disability benefits under the plan; plaintiff sued the plan and defendant in state court for wrongful denial of benefits; plaintiff's complaint against defendant was dismissed with prejudice on res judicata grounds; plaintiff obtained a default judgment against the plan based on rights accorded under the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (2000); defendant refused to pay the judgment; plaintiff applied for a writ of garnishment against defendant to satisfy the judgment, describing the subject of garnishment as the insurance policy that funded the plan; the insurance policy required defendant to pay benefits when there was a judicial determination that a beneficiary was eligible; the policy imposed a legally binding obligation on defendant, the violation of which gave the plan a valid right of action against defendant; and the right of action was not subject to any contingency or defense, the insurance policy itself was not a garnishable asset, but the right of action of the plan against defendant to compel payment of improperly denied disability benefits was an asset of the plan and was properly garnished by plaintiff, standing in the shoes of the plan against defendant, to satisfy the plan's liability to plaintiff. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
Garnishment against insurer of long-term disability plan is not barred by dismissal of action against insurer for wrongful denial of benefits. — Plaintiff's employer established a long-term disability plan that was funded by an insurance policy issued by defendant; defendant acted as the claims fiduciary of the plan; defendant denied plaintiff's claim for disability benefits under the plan; plaintiff sued the plan and defendant in state court for wrongful denial of benefits; plaintiff's complaint against defendant was dismissed with prejudice on res judicata grounds; plaintiff obtained a default judgment against the plan based on rights accorded under the federal Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 to 1461 (2000); defendant refused to pay the judgment; and plaintiff applied for a writ of garnishment against defendant to satisfy the judgment, the action for a writ of garnishment and the action for wrongful denial of benefits were distinct causes of action and could not have been brought in the same proceeding and the defense of res judicata based on the dismissal of the action for wrongful denial of benefits is not a bar to the action for garnishment to satisfy the judgment against the plan for wrongful denial of benefits. Kirby v. Guardian Life Ins. Co. of America, 2010-NMSC-014, 148 N.M. 106, 231 P.3d 87, rev'g Kirby v. Long-Term Disability Plan of TAD Resources Int'l, Inc., 2008-NMCA-154, 145 N.M. 264, 196 P. 3d 965.
Stop payment. — Non-bank garnishee had no legal duty to stop payment on checks that were sent to payee prior to garnishee being served with writ of garnishment. Cent. Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, 125 N.M. 438, 963 P.2d 515, cert. denied, 125 N.M. 322, 961 P.2d 167.
Law reviews. — For comment, "Wage Garnishment in New Mexico - Existing Debtor Protections under Federal and State Law and Further Proposals," see 1 N.M. L. Rev. 388 (1971).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 91 to 217.
Right of one to summon or charge himself as garnishee, 31 A.L.R. 711, 61 A.L.R. 1458.
Payment of judgment by garnishee without notice of its assignment, 32 A.L.R. 1024.
Reversal of judgment in favor of garnishee as affecting purchase of property involved in suit pending appeal without supersedeas, 36 A.L.R. 424.
Garnishee's duty as to protection of rights of principal defendant or third person, 45 A.L.R. 646.
Waiver or admission by garnishee as affecting principal defendant, 64 A.L.R. 430.
Refusal to render judgment of garnishment in proceedings in rem, because of danger of double liability to garnishee in event of refusal of court of another jurisdiction to recognize or give effect to judgment, if rendered, 69 A.L.R. 609.
Expiration of life of judgment as affecting pending garnishment proceedings by judgment creditor against one indebted to judgment debtor, 75 A.L.R. 1359.
Garnishment by landlord's creditor of rent accruing after service of writ on tenant but before answer or other proceeding, 100 A.L.R. 307.
Effect as between garnishor and principal defendant of judgment against garnishee, 103 A.L.R. 839.
Necessity of pleading estoppel or waiver in garnishment proceeding, 120 A.L.R. 97.
Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493.
United States Postal Service as subject to garnishment, 38 A.L.R. Fed. 546.
38 C.J.S. Garnishment §§ 189 et seq., 228, 230, 239.