The manner of serving writs of attachement [attachment] shall be as follows:
A. the writ or other lawful statement of the cause of action, shall be served on the defendant as an ordinary summons;
B. when lands or tenements or interests or estates in real estate whether legal or equitable are to be attached, the officer shall briefly describe the same in his return, and state that he attached all the right, title and interest of the defendant to the same, and shall moreover give notice to the actual occupants, if any there be;
C. when goods and chattels, moneys, effects, evidences of debt or other personal property are to be attached, the officer shall seize the same and keep them in his custody, if accessible, and if not accessible, he shall summon the person in whose hands they may be as garnishee. If the property to be attached is an intangible interest or right either legal or equitable in personal property in the possession of someone other than the defendant, the officer in whose hands the writ of attachment is placed shall endorse an entry thereon of his levy on all of the right, title and interest, legal or equitable, of the defendant in and to said personal property describing it, and shall forthwith serve a copy of the writ of attachment so endorsed upon the person in possession of said personal property in the same manner as summons are served, and if said property be in possession of a corporation incorporated under the laws of this state or any foreign corporation doing business in this state, a copy of the writ of attachment so endorsed shall be served on said corporation by delivering the same to the agent designated by said corporation upon whom process against the corporation may be served or said copy may be served upon said corporation as provided by law for the service of process upon corporations doing business in the state of New Mexico; if service cannot thus be made, such copy shall be served by leaving the same at the usual and most notorious place of doing business of such corporation in this state, which entry and service shall amount to and be considered a seizure of all the right, title and interest of defendant, legal or equitable, in and to the personal property so described, to all intent [intents] and purposes, and may be sold under execution;
D. if any provision of this section is inconsistent with the provisions of the Uniform Commercial Code [Chapter 55 NMSA 1978] the code shall control.
History: C.L. 1897, § 2685 (193), added by Laws 1907, ch. 107, § 1 (193); Laws 1909, ch. 63, § 33; Code 1915, § 4310; C.S. 1929, § 105-1612; Laws 1939, ch. 159, § 4; 1941 Comp., § 22-117; 1953 Comp., § 26-1-17; Laws 1961, ch. 96, § 11-104.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For notice of levy on real estate, filing, recording and indexing, see 39-4-4, 39-4-5 NMSA 1978.
For levy on cattle, see 39-6-1 to 39-6-4 NMSA 1978.
Substituted service permissible. — Service of an attachment issued on an affidavit showing that the defendant has absconded and absented himself from his usual place of abode may be made by leaving a true copy thereof at the usual place of abode of the defendant with some suitable person, and publication is not necessary. Bell v. Gaylord, 1891-NMSC-032, 6 N.M. 227, 27 P. 494; Spiegelberg v. Sullivan, 1873-NMSC-009, 1 N.M. 575 (decided under former law).
Filing of lis pendens notice authorized when writ seizes realty. — Writ of attachment, under which real estate is seized, affects the title to the real estate, and authorizes the filing of lis pendens notice. Bell v. Gaylord, 1891-NMSC-032, 6 N.M. 227, 27 P. 494 (decided under former law).
Judgment rendered during vacation void. — In action for assumpsit by attachment (now ordinary action of contract), where garnishment process was served on the defendant, judgment rendered during vacation was void. Staab v. Atlantic & Pac. R.R., 1886-NMSC-015, 3 N.M. (Gild.) 606, 9 P. 381 (decided under former law).
When writ of attachment has been discharged, jurisdiction to order the garnishee to perform or desist from performing any particular act is thereby terminated. Albuquerque Nat'l Bank v. Second Judicial Dist. Court, 1967-NMSC-068, 77 N.M. 603, 426 P.2d 204.
Personal and immediate custody over property not required. — It is not essential to the keeping of attached property in custodia legis that the sheriff maintain personal and immediate custody over it, and he may do so indirectly through his servant or through a custodian appointed by him and responsible to him. Hart v. Oliver Farm Equip. Sales Co., 1933-NMSC-037, 37 N.M. 267, 21 P.2d 96.
A valid attachment lien, created by constructive seizure and appointment of custodian, was not lost by mere temporary absence of custodian from premises where the property was situated. Hart v. Oliver Farm Equip. Sales Co., 1933-NMSC-037, 37 N.M. 267, 21 P.2d 96 (decided under former law).
Effect of judgment against attached property. — A legal judgment against attached property is a prerequisite to a valid judgment against garnishee. Smith v. Montoya, 1883-NMSC-010, 3 N.M. (Gild.) 13, 1 P. 175, overruled on other grounds by Field v. Otero, 1930-NMSC-060, 35 N.M. 68, 290 P. 1015 (decided under former law).
Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 295, 319, 344, 562.
Service of process on foreign corporation doing business in state, 113 A.L.R. 140.
Foreign corporation as a nonresident for purposes of attachment law of state in which it is doing business or is domesticated, 114 A.L.R. 1378.
7 C.J.S. Attachment §§ 11, 70, 170 to 193, 196, 197, 199, 253, 374.