If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay.
History: Laws 1884, ch. 1, § 46; C.L. 1884, § 2001; C.L. 1897, § 2769; Code 1915, § 3421; C.S. 1929, § 86-111; 1941 Comp., § 26-112; 1953 Comp., § 22-12-12.
ANNOTATIONSFinal writ issued in plaintiff's favor is, by law, a peremptory writ of mandamus. — Where plaintiff, wife of decedent, filed a petition for writ of mandamus against the office of the medical investigator (OMI) and the chief medical investigator requesting the district court compel the OMI to file a corrected death certificate concerning the circumstances of decedent's death, and where defendants filed an answer to the petition, an evidentiary hearing was held, and the district court granted the writ of mandamus, all procedures available for an alternative writ had been exhausted and the final writ, which completely disposed of the case on the merits as a result of judgment in favor of plaintiff, was peremptory. Pursuant to 12-201(A)(2) NMRA, the district court's issuance of a peremptory writ required defendants to file a notice of appeal within thirty days of the district court's issuance of the peremptory writ; where no notice of appeal or motion directed against the judgment was filed within that time, defendants' appeal was untimely. Hoyt v. State, 2015-NMCA-108.
Attorney fees incurred by an employee in a mandamus action to compel the employee's governmental employer to appoint independent defense counsel to defend the employee pursuant to the Tort Claims Act are not recoverable by the employee under this section.
Section
44-2-13 Officer or board refusing to perform duty; fine; other action for penalty barred.
44-2-14 Review of proceedings.Paz v. Tijerina, 2007-NMCA-109,142 N.M. 391, 165 P.3d 1167.
Section permits damage award in conjunction with granting of a peremptory writ of mandamus. The trial court having denied the writ, appellant cannot recover damages. N.M. Bus Sales v. Michael, 1961-NMSC-034, 68 N.M. 223, 360 P.2d 639.
Attorney fees are not recoverable as a part of the damages sustained, or costs and disbursements, under this section. State ex rel. Roberson v. Board of Educ., 1962-NMSC-064, 70 N.M. 261, 372 P.2d 832.
This section does not mean that appeal lies from "judgment" granting writ of mandamus if the issue of damages has not been resolved. Village of Los Ranchos v. Sanchez, 2004-NMCA-128, 136 N.M. 528, 101 P.3d 339, cert. denied, 2004-NMCERT-011, 136 N.M. 656, 103 P.3d 580.
Law reviews. — For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M. L. Rev. 249 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus §§ 357, 495 to 498.
Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903, 34 A.L.R.4th 457.
Allowance of attorney's fees in mandamus proceedings, 34 A.L.R.4th 457.
55 C.J.S. Mandamus §§ 342, 375 to 379.