2019 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 1 - Limitations of Actions
Section 37-1-1 - [Generally.]
The following suits or actions may be brought within the time hereinafter limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially provided.
History: Laws 1880, ch. 5, § 1; C.L. 1884, § 1860; C.L. 1897, § 2913; Code 1915, § 3346; C.S. 1929, § 83-101; 1941 Comp., § 27-101; 1953 Comp., § 23-1-1.ANNOTATIONS
Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.
Cross references. — For provision barring sale under mortgage or deed of trust where action on underlying indebtedness barred, see 37-1-20 NMSA 1978.
For limitations applicable to tax assessments, and collection of same, see 7-1-18, 7-1-19 NMSA 1978.
For limitation on action to enforce tax lien, see 7-1-39 NMSA 1978.
For limitations to challenge sale of real property for delinquent taxes, see 7-38-70 NMSA 1978.
For limitation on actions for collection of property taxes, see 7-38-81 NMSA 1978.
For limitations applicable to criminal prosecutions, see 30-1-9, 30-1-10 NMSA 1978.
For limitation of action to enforce mechanic's lien, see 48-2-10 NMSA 1978.
Nature of the right sued upon. — The nature of the right sued upon, not the form of action or relief demanded, determines the applicability of the statute of limitations. Rito Cebolla Investment, Ltd. v. Golden West Land Corp., 1980-NMCA-028, 94 N.M. 121, 607 P.2d 659.
Choice of law. — Statutes of limitation are procedural and the law of the forum governs matters of procedure and New Mexico statutes of limitation apply even if the claim is governed by another state's substantive law. Nez v. Forney, 1989-NMSC-074, 109 N.M. 161, 783 P.2d 471.
Multiple causes of action. — Where a suit invokes several causes of action, each are subject to a district statute of limitations and district accrual periods should apply as to each cause of action, even if the causes of action are derived from a single event. Tiberi v. CIGNA Corp., 89 F.3d 1423 (10th Cir. 1996).
Law favors right of action rather than right of limitation, since limitation is procedural, not substantive in nature, and merely bars the remedy by which one party seeks to enforce his substantive rights; fault of defendant and injustice to plaintiff are other reasons to favor action and should be the guidelines of public policy. Gaston v. Hartzell, 1976-NMCA-041, 89 N.M. 217, 549 P.2d 632.
Public policy against stale litigation. — The statutes of limitation announce a public policy that it is better for the public that some rights be lost than that stale litigation be permitted, and when the limitation of the liability fixed by the statute is doubtful or debatable, it should be so construed as not to contravene that policy. Gaston v. Hartzell, 1976-NMCA-041, 89 N.M. 217, 549 P.2d 632.
Stale litigation involves plaintiff who is himself at fault; it does not arise when a defendant is at fault. Gaston v. Hartzell, 1976-NMCA-041, 89 N.M. 217, 549 P.2d 632.
Accrual from injury, not wrongful act. — A cause of action accrues, for the purpose of the statutes of limitations, from the injury rather than the wrongful act. Zamora v. Prematic Serv. Corp., 936 F.2d 1121 (10th Cir. 1991).
Question for court. — Where the facts are not disputed, the question of whether a case is within the bar of the statute of limitations is one of law for the court. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68, overruled on other grounds by Peralta v. Martinez, 1977-NMCA-040, 90 N.M. 391, 564 P.2d 194.
Applicability of limitations to suit brought by state. — If an action, although brought in the name of a body corporate or politic, is in reality for the state which is the real party in interest and the nominal plaintiff has no real interest in the litigation, then the statute of limitations could not be pleaded against the sovereign; if the suit is brought in the name of the state, but it is only the nominal party of record and its name is used to enforce a right which enures solely to the benefit of the body corporate or politic, then the statute of limitations can be pleaded as a bar to the action. Board of Educ. v. Standhardt, 1969-NMSC-118, 80 N.M. 543, 458 P.2d 795.
Statutes of limitation ordinarily do not run against the state. N.M. Dep't of Labor v. Valdez, 136 Bankr. 874 (Bankr. D.N.M. 1992).
Bodies corporate and politic. — The general statutes of limitations (as originally set out in Laws 1880, ch. 5, and now appearing as 37-1-1 to 37-1-19 NMSA 1978), with few amendments are applicable in all actions brought by or against bodies corporate or politic except when otherwise expressly declared. Board of Educ. v. Standhardt, 1969-NMSC-118, 80 N.M. 543, 458 P.2d 795; Romero v. N.M. Health & Env't Dep't, 1988-NMSC-073, 107 N.M. 516, 760 P.2d 1282.
This section applies to proceedings in probate court. Bent v. Thompson, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891); Browning v. Estate of Browning, 1886-NMSC-022, 3 N.M. (Gild.) 659, 9 P. 677.
Limitations against trust beneficiary. — A statute of limitations does not run between a trustee and his beneficiary until there has been a repudiation of the constructive trust. Miller v. Miller, 1971-NMSC-104, 83 N.M. 230, 490 P.2d 672.
Generally the obligation of a trustee to account is not affected by limitations until a denial or repudiation of the trust. McCallister v. Farmers Dev. Co., 1936-NMSC-006, 40 N.M. 101, 55 P.2d 657.
Action for accounting. — An action for an accounting based on a letter from defendants allegedly creating an express trust in certain motel property in plaintiff's favor has been held to be subject to the limitations in this statute. Fidel v. Fidel, 1975-NMSC-008, 87 N.M. 283, 532 P.2d 579.
Accrual of negligence action. — While the statute of limitations began to run when the cause of action accrued, there was no cause of action for negligence until there had been a resulting injury; hence, cause of action arising out of allegedly negligent failure to furnish liability coverage could only accrue when legal liability materialized, that is, when suit was filed. Spurlin v. Paul Brown Agency, Inc., 1969-NMSC-061, 80 N.M. 306, 454 P.2d 963.
Accrual of action for breach of indemnity contract. — Where a contract of indemnity contains a promise to make specified payments, an immediate right of action accrues upon the failure of the indemnitor to perform, regardless of whether actual damages have been sustained. Zamora v. Prematic Serv. Corp., 936 F.2d 1121 (10th Cir. 1991).
Certificate of deposit. — The statute of limitations does not begin to run against a certificate of deposit until presentation and demand of payment. Allison v. First Nat'l Bank, 1973-NMCA-083, 85 N.M. 283, 511 P.2d 769, rev'd on other grounds, 1973-NMSC-089, 85 N.M. 511, 514 P.2d 30.
Mortgage sale. — Execution of power of sale in mortgage is not barred by limitation barring suit or action on the debt or security. Baca v. Chavez, 1927-NMSC-014, 32 N.M. 210, 252 P. 987.
Statute not tolled. — There is no tolling of the six-year statute of limitations during the days in which the decedent's widow has preferential right to apply for appointment as administratrix (now personal representive). In re Matson's Estate, 1946-NMSC-028, 50 N.M. 155, 173 P.2d 484).
Stay of discovery in class action proceedings does not toll the statutes of limitations with respect to claims of a party to the class action. Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, 140 N.M. 111, 140 P.3d 532, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
Equitable estoppel. — A party may be equitably estopped from asserting a statute-of-limitations defense if that party's conduct has caused the plaintiff to refrain from filing action until after the limitations period has expired. In re Drummand, 1997-NMCA-094, 123 N.M. 727, 945 P.2d 457.
The rule of equitable tolling for putative class members during the pendency of a class certification decision in a class action does not toll the statutes of limitations with respect to the claims of a third-party plaintiff who was a defendant in the class action where the class action complaint excluded the third-party plaintiff from the definition of the class and the third-party defendants of the third-party plaintiff's claims were not defendants in the underlying class action. Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, 140 N.M. 111, 140 P.3d 532, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
Discovery rule requires the plaintiff to respond to a motion to dismiss that is based on the grounds that the plaintiff's claim is time barred, with factual allegations that, if proven, would demonstrate that if plaintiff had diligently investigated the problem, plaintiff would have been unable to discover the facts underlying the claim. Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, 140 N.M. 111, 140 P.3d 532, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
Discovery rule imposes a duty of inquiry into the causes of an injury when the plaintiff becomes aware of the injury and a duty to attempt to determine the identity of the wrongdoer. Butler v. Deutsche Morgan Grenfell, Inc., 2006-NMCA-084, 140 N.M. 111, 140 P.3d 532, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
Extinguishment of lien. — Lien created by statute authorizing recordation of a transcript of the docket thereof is a right as distinguished from a remedy, and if the remedy of foreclosure of the judgment lien prayed for in a counterclaim is barred, the lien has been extinguished. Pugh v. Heating & Plumbing Fin. Corp., 1945-NMSC-031, 49 N.M. 234, 161 P.2d 714.
Nonclaim statute not a substitute. — The nonclaim statute does not replace the statute of limitations upon a person's death, and the holder of a note barred by the general statute cannot rely on the nonclaim statute which has not yet run. In re Matson's Estate, 1946-NMSC-028, 50 N.M. 155, 173 P.2d 484.
Overpayment on public lands. — The statute of limitation of actions has no application to proceedings under Laws 1931, ch. 99 (19-7-59 to 19-7-63 NMSA 1978), and the commissioner of public lands should consider claims filed for refund of payments erroneously made on account of lease or sale of state lands regardless of time. 1932 Op. Att'y Gen. No. 32-506.
Law reviews. — For survey, "The Statute of Limitations in Medical Malpractice Actions," see 6 N.M.L. Rev. 271 (1976).
For article, "Selecting an Analogous State Limitations Statute in Reconstruction Civil Rights Claims: The Tenth Circuit's Resolution," see 15 N.M.L. Rev. 11 (1985).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Limitation of Actions § 1 et seq.
Reasonableness of period allowed for existing causes of action by statute reducing period of limitation, 49 A.L.R. 1263, 120 A.L.R. 758.
Inclusion and exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249.
Validity and applicability to existing causes of action not already barred of statute enlarging period of limitation, 79 A.L.R.2d 1080.
Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.
Fraud, misrepresentation or deception as estopping reliance on statute of limitations, 43 A.L.R.3d 429.
Which statute of limitations applies to efforts to compel arbitration of a dispute, 77 A.L.R.4th 1071.
What statute of limitations applies to state law action by public sector employee for breach of union's duty of fair representation, 12 A.L.R.5th 950.
Extensions of time under § 108(a) of the Bankruptcy Code (11 USCS § 108(a)), 80 A.L.R. Fed. 374.
Monetary remedies under § 23 of Consumer Product Safety Act (15 USCS § 2072), 87 A.L.R. Fed. 587.
What statute of limitations applies to action to compel arbitration pursuant to § 301 of Labor Management Relations Act (29 USCS § 185), 96 A.L.R. Fed. 378.
Statute of limitations in civil actions for damages under the Racketeer Influence and Corrupt Organizations Act (RICO), 18 U.S.C.A. §§ 1961-1968, 156 A.L.R. Fed. 361.
54 C.J.S. Limitations of Actions §§ 1 to 31 et seq.