2018 New Mexico Statutes
Chapter 38 - Trials
Article 1 - Process
Section 38-1-1 - Rules of pleading, practice and procedure.

Universal Citation: NM Stat § 38-1-1 (2018)
38-1-1. Rules of pleading, practice and procedure.

A. The supreme court of New Mexico shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of New Mexico for the purpose of simplifying and promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant.

B. The supreme court shall cause all rules to be printed and distributed to all members of the bar of the state and to all applicants, and no rule shall become effective until thirty days after it has been so printed and distributed.

History: Laws 1933, ch. 84, § 1; 1941 Comp., § 19-301; 1953 Comp., § 21-3-1; Laws 1966, ch. 28, § 31.

ANNOTATIONS

Abrogation of common law jurisdiction to correct illegal sentences. — Paragraph A of Rule 5-801 NMRA, which abrogated the common law jurisdiction of the district court to correct illegal sentences, does not violate the separation of powers doctrine. State v. Torres, 2012-NMCA-026, 272 P.3d 689, cert. granted, 2012-NMCERT-003.

Constitutionality. — When the legislature enacted this chapter, it did not delegate to the court a function exclusively legislative, contrary to N.M. const., art. III, § 1. The trial court rules promulgated by the supreme court, though promulgated subsequent to and consequent upon the enactment of this chapter, were promulgated, nevertheless, by the court in the exercise of an inherent power lodged in the court to prescribe such rules of practice, pleading, and procedure as will facilitate the administration of justice. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646.

Unquestioned power rests in supreme court to promulgate rules of pleading, practice and procedure. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845.

Unquestioned power rests in supreme court to promulgate rules. — Although 38-1-2 NMSA 1978 refers to statutes existing in 1933, it is fair to attribute to the legislature, in view of the delegation in this section, the intent that statutes relating to pleading, practice and procedure enacted after 1933 would remain in effect "unless and until modified or suspended by rules" promulgated pursuant to this section. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, 111 N.M. 336, 805 P.2d 603.

Purpose of rules. — This section provides for promulgation by the supreme court of rules to regulate pleading, practice and procedure for the purpose, among others, of "promoting the speedy determination of litigation upon its merits." This indicates the end to be sought by the rules to be no different from that of the federal rules. Fort v. Neal, 1968-NMSC-149, 79 N.M. 479, 444 P.2d 990.

Section prohibits the promulgation of a rule that abridges, enlarges or modifies the substantive rights of any litigant. Johnson v. Terry, 1944-NMSC-035, 48 N.M. 253, 149 P.2d 795.

Modification of legislative rules. — Legislative rules relating to pleading, practice and procedure in the courts, particularly where those rules relate to court management or housekeeping functions, may be modified by a subsequent rule promulgated by the supreme court. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, 111 N.M. 336, 805 P.2d 603.

Substantive law is the positive law which creates, defines and regulates the rights and duties of the parties and which may give rise to a cause for action, as distinguished from adjective law which pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective. Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 1964-NMSC-142, 74 N.M. 458, 394 P.2d 978.

Creation of the right of appeal is a matter of substantive law and not within the rule-making power of the supreme court. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845.

Regulation of manner and time for taking appeal procedural matter. — It is within the rule-making power of the supreme court to reduce the time for taking an appeal from six to three months (now 30 days) once the legislature has authorized appeal, since the regulation of the manner and time for taking appeal are procedural matters. State v. Arnold, 1947-NMSC-043, 51 N.M. 311, 183 P.2d 845.

Rules liberally construed. — In order that causes coming on for appeal may be reviewed on the merits, supreme court rules are to be construed liberally with that end in view. Fairchild v. United Serv. Corp., 1948-NMSC-048, 52 N.M. 289, 197 P.2d 875.

Law reviews. — For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984).

For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985).

For survey of 1990-91 appellate procedure, see 22 N.M.L. Rev. 623 (1992).

For article, "New Mexico's Accountant-Client Privilege," see 37 N.M.L. Rev. 387 (2007).

For article, "Jurisdiction as May be Provided by Law: Some Issues of Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 20 Am. Jur. 2d Courts § 48 et seq.

Power of court to prescribe rules of pleading, practice or procedure, 110 A.L.R. 22, 158 A.L.R. 705.

21 C.J.S. Courts §§ 124 to 134.

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