2018 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 2 - Abatement and Revivor
Section 37-2-10 - Revivor on death of plaintiff.]

Upon the death of the plaintiff in an action, it may be revived in the names of his representatives to whom his rights have passed; where his right has passed to his personal representatives the revivor shall be in his name; where it has passed to his heirs or devisees who could support the action if brought anew, the revivor may be in their names.

History: Laws 1884, ch. 5, § 10; C.L. 1884, § 2147; C.L. 1897, § 3096; Code 1915, § 4273; C.S. 1929, § 105-1211; 1941 Comp., § 19-710; 1953 Comp., § 21-7-10.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For limitation on revivor in name of plaintiff's representative or successor, absent consent, see 37-2-14 NMSA 1978.

For rule relating to substitution of parties, see Rule 1-025 NMRA.

"May". — The use of the word "may" in this section has no bearing upon the question of who are and who are not indispensable parties; it simply permits certain individuals to take the initiative in making the litigation go forward. Keirsey v. Hirsch, 1953-NMSC-112, 58 N.M. 18, 265 P.2d 346, superseded by rule and Sims v. Sims, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.

Passing of decedent's rights. — At the moment decedent died, his interest in certain land by virtue of contract of sale belonged to his heirs, who were entitled to possession and damages, and not to administratrix. Keirsey v. Hirsch, 1953-NMSC-112, 58 N.M. 18, 265 P.2d 346, superseded by rule and Sims v. Sims, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.

Indispensable parties. — Heirs of decedent, the original plaintiff in suit for specific performance, were indispensable parties, as was the administratrix, by reason of her obligation to pay the purchase price. Keirsey v. Hirsch, 1953-NMSC-112, 58 N.M. 18, 265 P.2d 346, superseded by rule and Sims v. Sims, 1996-NMSC-078, 122 N.M. 618, 930 P.2d 153.

Adding indispensable parties. — Trial court's action permitting amendment of complaint seeking specific performance, so as to add heirs of original plaintiff as parties, and relating it back to timely substitution of administratrix upon plaintiff's death, was not improper. State ex rel. Skinner v. District Court, 1955-NMSC-106, 60 N.M. 255, 291 P.2d 301.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 1 Am. Jur. 2d Abatement, Survival and Revival § 119.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

1 C.J.S. Abatement and Revival § 158.