Whenever property of a defendant has been attached and it shall appear from the affidavit for attachment and the return of the sheriff, that such defendant cannot be personally served with process, the court shall order a publication to be made stating the nature and amount of the plaintiff's demand, and notifying the defendant that his property has been attached, and that unless he appears at the return day named in said publication, judgment will be rendered against him and his property sold to satisfy the same; which notice by publication shall be published in the same manner prescribed by law for the publication of other notices from the district courts; provided that personal service of such notice of suit upon the defendant outside the state of New Mexico, made in the same manner as now provided by law for the personal service of summons outside the state of New Mexico, shall be equivalent to publication.
History: C.L. 1897, § 2685 (196), added by Laws 1907, ch. 107, § 1 (196); 1913, ch. 53, § 1; Code 1915, § 4311; Laws 1927, ch. 91, § 2; C.S. 1929, § 105-1614; 1941 Comp., § 22-118; 1953 Comp., § 26-1-18.
ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Generally. — If the nonresident defendant has property within the territorial jurisdiction of the court, the same may be reached by attachment properly instituted, and the court, upon seizure of the property under the writ of attachment and proper notice by publication, so far acquires jurisdiction of the property as a proceeding in rem as to ascertain the pecuniary obligations of the defendant, and to apply the proceeds of the attached property in satisfaction of the same. 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).
Mailing copy of complaint and summons to nonresident, unnecessary. — An affidavit for attachment, where defendant is a nonresident, need not state his residence or that his residence is unknown, nor is it necessary that a copy of the complaint and summons be mailed to him. Glasgow v. Peyton, 1916-NMSC-052, 22 N.M. 97, 159 P. 670.
Defective notice. — In proceeding in assumpsit by attachment (now ordinary action on contract) against nonresident defendants, failing to appear, where the citation and notice by publication contained no notice to the defendants that property has been attached, or that such property would be sold to satisfy the judgment that would be rendered against them on their failure to appear, such notice was void. 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).
Where notice of suit was bad, attempted service was bad, the levy itself was defective, the officer's return was imperfect and the bond carried no penalty, there were enough fatal defects to render the attachment proceeding bad even in a collateral attack. Larkin v. Folsom Town & Inv. Co., 1956-NMSC-097, 61 N.M. 441, 301 P.2d 1091.
Service by registered mail in lieu of publication ineffective for jurisdiction. — Where service on nonresident defendant in attachment suit was by registered mail instead of by publication, it was ineffective to give the court jurisdiction, so that default judgment in personam for plaintiff was void and subject to collateral attack. Walter v. Richardson, 1956-NMSC-105, 62 N.M. 152, 306 P.2d 643.
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 §§ 14, 26, 73, 392, 562.
Notice to nonresident principal essential to attachment, 92 A.L.R. 570.
7 C.J.S. Attachment §§ 179, 185, 378, 379.