2018 New Mexico Statutes
Chapter 66 - Motor Vehicles
Article 5 - Licensing of Operators and Chauffeurs; Financial Responsibility; Uninsured Motorists' Insurance; Identification Cards
Section 66-5-104 - Procedure in action against nonresident owner or operator.]
The manner of procuring and serving process in any cause, brought pursuant to the preceding section [66-5-103 NMSA 1978], shall be as follows, to wit:
The plaintiff shall file a verified complaint in one of the district courts of the state, showing a cause of action against the defendant, or his executor, administrator or personal representative, of the class contemplated in Section one (66-5-103 NMSA 1978) hereof; and shall further show in said complaint, or by affidavit, to the satisfaction of the judge of said court, that the defendant, or his executor, administrator or personal representative, is one of the persons contemplated in Section one (66-5-103 NMSA 1978), and the residence of said defendant, or his executor, administrator or personal representative, and a description of the car, or motor vehicle, claimed to have been operated by the said defendant, or his agent, as near as the same can reasonably be ascertained by the plaintiff; and the time, place and nature of such accident, or injury. Upon such showing being made, the judge shall make an order, directing that service of process be made on the defendant, or his executor, administrator or personal representative, as provided in Section one (66-5-103 NMSA 1978) hereof; and, also, that a copy of the process, and complaint, and of said order, and a notice that the same has been served upon the secretary of state, pursuant to this act [(66-5-103, 66-5-104 NMSA 1978)], be delivered to the defendant personally, or his executor, administrator or personal representative, without the state. Proof of such service shall be made by affidavit filed in said cause, and service shall be deemed complete thirty (30) days from the date such personal service is made on the defendant, or his executor, administrator or personal representative.
The court in which the action is pending shall, upon affidavit submitted upon behalf of the defendant, or his executor, administrator or personal representative, grant such additional time to answer, or continuances, as shall be reasonably necessary to allow defendant, or his executor, administrator or personal representative, full opportunity to plead and prepare for the trial of the said cause.
History: Laws 1931, ch. 127, § 2; 1941 Comp., § 68-1004; Laws 1953, ch. 146, § 2; 1953 Comp., § 64-24-4; recompiled as 1953 Comp., § 64-5-104, by Laws 1978, ch. 35, § 276.
Cross references. — For process against foreign corporations, see 38-1-6 NMSA 1978.
"Nonresident". — Intent of the legislature in writing Section 66-5-103 NMSA 1978 and this section was to have the word "nonresident" include every nonresident whether a corporation or an individual. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
When nonresident provisions inapplicable. — Service of process on New Mexico driver by serving a copy of the summons, complaint and court order upon the driver by an Arizona sheriff was valid under Section 38-1-16 NMSA 1978 concerning personal service out of state, where the driver was completely apprised of the case against him, even though plaintiff apparently thought at the time that service must be obtained under the nonresident motorist provisions (this section and Section 66-5-104 NMSA 1978). Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
Service upon director of dissolved corporation in Arizona is sufficient under New Mexico law; and it is not necessary that service be made in the state of incorporation. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
To confer jurisdiction under Section 66-5-103 NMSA 1978 and this section not only must a cause of action be stated in a complaint but a plaintiff "shall further show in his complaint or by affidavit" that a defendant was a nonresident owner or operator as contemplated by Section 66-5-103 NMSA 1978 at the time of the accident or collision. The complaint cannot simply state that the defendants were nonresidents. St. Paul Fire & Marine Ins. Co. v. Rutledge, 1961-NMSC-024, 68 N.M. 140, 359 P.2d 767.
Notice of service of process on secretary must be given. — The clause "notice that the same have [has] been served upon the secretary of state" refers to what is therefore directed to be served upon the secretary of state, that is "process." State ex rel. Dresden v. District Court, 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506.
Notice of service of court's order need not be given. — It is not necessary that a copy of the court's order be served on the secretary of state, and that notice be delivered to the defendant personally that such copy has been served upon the secretary of state. State ex rel. Dresden v. District Court, 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506.
Action between nonresidents to recover damages for wrongful death is transitory in character and may be brought and tried in any county in the state, so that prohibition will not lie to restrain district court of a county other than that in which the accident took place from going forward with the case. State ex rel. Appelby v. District Court, 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.
Secretary of state may not charge a fee where service of process on nonresident operators of motor vehicles is made upon him. 1935-36 Op. Att'y Gen. 36-1365.
Law reviews. — For comment on service on nonresidents in other contexts, see Melfi v. Goodman, 69 N.M. 488, 368 P.2d 582 (1962); J.H. Silversmith, Inc. v. Keeter, 72 N.M. 246, 382 P.2d 720 (1963), see 3 Nat. Resources J. 348 (1963).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 8 Am. Jur. 2d Automobiles and Highway Traffic §§ 952 to 976.
61 C.J.S. Motor Vehicles § 502(5).
