2020 New Mexico Statutes
Chapter 38 - Trials
Article 1 - Process
Section 38-1-3 - [Common law is rule of practice and decision.]

In all the courts in this state the common law as recognized in the United States of America, shall be the rule of practice and decision.

History: Laws 1875-1876, ch. 2, § 2; C.L. 1884, § 1823; C.L. 1897, § 2871; Code 1915, § 1354; C.S. 1929, § 34-101; 1941 Comp., § 19-303; 1953 Comp., § 21-3-3.

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

Cross references. — For applicability of common law in criminal cases, see 30-1-3 NMSA 1978.

I. GENERAL CONSIDERATION.

The legislature intended to adopt the common law, or lex non scripta, and such British statutes of a general nature not local to that kingdom, nor in conflict with the constitution or laws of the United States, nor of this territory, which are applicable to our conditions and circumstances, and which were in force at the time of the American separation from the mother country. Yeo v. Tweedy, 1929-NMSC-033, 34 N.M. 611, 286 P. 970; Browning v. Estate of Browning, 1886-NMSC-022, 3 N.M. (Gild.) 659, 9 P. 677; Territory ex rel. Wade v. Ashenfelter, 1887-NMSC-013, 4 N.M. (Gild.) 93, 12 P. 879, appeal dismissed, 154 U.S. 493, 14 S. Ct. 1141, 38 L. Ed. 1079 (1893); Bent v. Thompson, 1890-NMSC-005, 5 N.M. 408, 23 P. 234, aff'd, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891); Gurule v. Duran, 1915-NMSC-043, 20 N.M. 348, 149 P. 302, 1915F L.R.A. 648 (1915); Plomteaux v. Solano, 1918-NMSC-104, 25 N.M. 24, 176 P. 77; Blake v. Hoover Motor Co., 1923-NMSC-005, 28 N.M. 371, 212 P. 738.

New Mexico adopted the common law or lex non scripta and such British statutes of a general nature not local to that kingdom nor in conflict with the state constitution or specific contrary statutes, which are applicable to conditions and circumstances which were in force at the time of American separation from England, and made it binding as the rule of practice and decision in the courts of this state. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 3016).

New Mexico has adopted the common law. State v. Valdez, 1972-NMCA-014, 83 N.M. 632, 495 P.2d 1079, aff'd, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, cert. denied, 83 N.M. 741, 497 P.2d 743; and cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

By the adoption of the common law in New Mexico, the civil law was completely supplanted, except as incorporated in the statutes of the territory. Field v. Otero, 1930-NMSC-060, 35 N.M. 68, 290 P. 1015; Beals v. Ares, 1919-NMSC-067, 25 N.M. 459, 185 P. 780.

Common law as the rule of practice and decision prevails where there is no special statutory provision in respect to a matter. Walker v. N.M. & S.Pac. R.R., 1893-NMSC-027, 7 N.M. 282, 34 P. 43, aff'd, 165 U.S. 593, 17 S. Ct. 421, 41 L. Ed. 837 (1897).

The common law is the rule of practice and decision. This rule does not obtain, however, when the subject matter of any procedural right is fully covered by statute or rule. Sellman v. Haddock, 1957-NMSC-037, 62 N.M. 391, 310 P.2d 1045, overruled on other grounds by Safeco Ins. Co. v. U.S. Fid. & Guar. Co., 1984-NMSC-045, 101 N.M. 148, 679 P.2d 616.

Where common law applicable to conditions in state. — The New Mexico supreme court has the power to do away with common-law principles since the common law is not the rule of practice and decision if inapplicable to conditions in New Mexico, and if it is not applicable to the condition and circumstances it is not to be given effect. Hicks v. State, 1975-NMSC-056, 88 N.M. 588, 544 P.2d 1153.

The common law is not the rule of practice and decision if not applicable to conditions in New Mexico. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619.

Common law is only abrogated or repealed by statute when directly and irreconcilably opposed to the common law. S. Union Gas Co. v. City of Artesia, 1970-NMSC-086, 81 N.M. 654, 472 P.2d 368.

Common law inapplicable to procedural right otherwise covered. — The common law does not apply when the subject matter of any procedural right is fully covered by the constitution, statutes or rules. State ex rel. Attorney Gen. v. First Judicial Dist. Court, 1981-NMSC-053, 96 N.M. 254, 629 P.2d 330.

Common-law doctrines not invulnerable. — Because a common-law doctrine is judicially created, it is within the court's province to change a common-law doctrine if it is unwise. Merely because a common-law doctrine has been in effect for many years, it is not rendered invulnerable to judicial attack once it has reached a point of obsolescence. Lopez v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d 1269.

Revision of an outmoded common law doctrine is within the competence of the judiciary. Lopez v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d 1269.

II. PARTICULAR MATTERS.

Statute of frauds. — Letters from decedent to his surviving brother contained all elements of a written memoranda of an oral agreement by the decedent to devise the family farm to the surviving brother to satisfy the statute of frauds where the letters identified the parties to the agreement, because they were written by the decedent to the surviving brother; the letters sufficiently identified the property, because they described the property as "our property in Rio Arriba County", there was no other property that the brothers owned jointly except the family farm in Rio Arriba County, and the family had a long history and was intimately familiar with the property; and the letters stated the terms and condition of all the promises constituting the agreement and by whom and to whom the promises were made because the letters stated that the surviving brother would convey title to the property to the decedent to allow the decedent to take advantage of the veteran's tax exemption and stated that the decedent would devise the property to the surviving brother if the surviving brother survived the decedent. Varoz v. Varoz, 2008-NMSC-027, 144 N.M. 7, 183 P.3d 151.

Where sellers verbally agreed to sell a tract of land to buyers for a home site; in reliance on the agreement, buyers cashed IRA and 401-K retirement plans at a substantial penalty; with the consent of the sellers, buyers went into possession of the land, purchased a double-wide mobile home and moved the home onto the land, erected valuable temporary and permanent improvements on the land, and landscaped the property; and buyers spent approximately $85,000 in purchasing the home and making improvements, the buyers' actions were sufficient part performance in reliance on the oral agreement to take the contract outside the statute of frauds. Beaver v. Brumlow, 2010-NMCA-033, 148 N.M. 172, 231 P.3d 628.

Change of venue by court upon own motion. — A trial court, in a proper case and in the exercise of its discretion, has the power to order a change of venue sua sponte. This power existed at common law and the common law is the rule of practice and decision in New Mexico. Valdez v. State, 1972-NMSC-029, 83 N.M. 720, 497 P.2d 231, aff'g, 83 N.M. 741, 497 P.2d 743 (1972), cert. denied, 83 N.M. 741, 497 P.2d 743; and cert. denied, 409 U.S. 1077, 93 S. Ct. 694, 34 L. Ed. 2d 666 (1972).

Citizen's arrest. — Because in New Mexico there is no statute covering citizen's arrest, the common law controls; thus, a citizen's arrest may be made for felonies or the misdemeanors of breach of the peace or shoplifting; the person making the arrest must inform the arrested person of the offense for which he was under arrest, and the force used must be reasonable. Downs v. Garay, 1987-NMCA-108, 106 N.M. 321, 742 P.2d 533.

Damages for waste. — An ancient statute giving a landlord treble damages for waste committed by the tenant is a harsh rule and not in harmony with our conditions and circumstances. Blake v. Hoover Motor Co., 1923-NMSC-005, 28 N.M. 371, 212 P. 738.

Dower and curtesy. — Common-law rights of dower and curtesy have never obtained in New Mexico as to the interests of the wife and husband, respectively, in the community estate. Hernandez v. Becker, 54 F.2d 542 (10th Cir. 1931).

Doctrine of destructibility of contingent remainders is not applicable in this state. Abo Petroleum Corp. v. Amstutz, 1979-NMSC-070, 93 N.M. 332, 600 P.2d 278.

Marriage. — This section did not introduce the common-law marriage into New Mexico. In re Gabaldon's Estate, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672.

Probate. — This section did not affect statute laws in relation to probate courts. Bent v. Thompson, 1890-NMSC-005, 5 N.M. 408, 23 P. 234, aff'd, 138 U.S. 114, 11 S. Ct. 238, 34 L. Ed. 902 (1891).

Quo warranto. — In the absence of a statute to try the title to an office in a private corporation, the right to a writ of quo warranto will be left to common-law principles and the interpretation of the statute of 9th Anne, ch. 20. State ex rel. Nw. Colonization & Imp. Co. v. Huller, 1918-NMSC-001, 23 N.M. 306, 168 P. 528, cert. denied, 246 U.S. 667, 38 S. Ct. 336, 62 L. Ed. 929 (1918), appeal dismissed, 247 U.S. 503, 38 S. Ct. 426, 62 L. Ed. 1239 (1918).

Right to hold public office. — There being no statute either denying or conferring the right of holding office upon a woman, the common law adopted hereby will prevail, and under it a woman could hold a purely ministerial office if she were capable of performing the duties thereof. State v. De Armijo, 1914-NMSC-021, 18 N.M. 646, 140 P. 1123; see now N.M. Const., art. VII, § 2.

Statute of frauds. — The English statute of frauds [29 Car. II, c. 3 (1677)] is in force in New Mexico by virtue of the adoption of the common law of England. Maljamar Oil & Gas Corp. v. Malco Refineries, Inc., 155 F.2d 673 (10th Cir. 1946).

The English statute of frauds is in force in New Mexico as part of the common law. Coseboom v. Margaret S. Marshall's Trust, 1958-NMSC-065, 64 N.M. 170, 326 P.2d 368, rev'd on other grounds, 1960-NMSC-113, 67 N.M. 405, 356 P.2d 117.

The English statute of frauds is part of our common law. Alvarez v. Alvarez, 1963-NMSC-124, 72 N.M. 336, 383 P.2d 581; Ades v. Supreme Lodge Order of Ahepa, 1947-NMSC-031, 51 N.M. 164, 181 P.2d 161; Pitek v. McGuire, 1947-NMSC-053, 51 N.M. 364, 184 P.2d 647; Pederson v. Lothman, 1958-NMSC-003, 63 N.M. 364, 320 P.2d 378; Ray v. Jones, 1958-NMSC-080, 64 N.M. 223, 327 P.2d 301; Boswell v. Rio De Oro Uranium Mines, Inc., 1961-NMSC-082, 68 N.M. 457, 362 P.2d 991.

The statute of frauds is part of the common law. Boddy v. Boddy, 1966-NMSC-242, (1966).

Survival of actions. — The rule in common law that no cause of action for personal injury resulting in death survived in favor of the personal representative of the deceased, nor against the personal representative of the wrongdoer, remains the rule of practice and decision in New Mexico, except as superseded or abrogated by statute or constitution, or held to be inapplicable to conditions in New Mexico. Ickes v. Brimhall, 1938-NMSC-036, 42 N.M. 412, 79 P.2d 942 (see now Sections 41-2-1 to 41-2-4 NMSA 1978).

The common law rule that a claim for personal injury not resulting in death does not survive the death of the victim is not applicable to conditions in New Mexico because the tort of negligence did not exist when the rule developed and because there is no reason for such a rule in connection with compensatory damages. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619.

Water law. — New Mexico has never followed the common law in connection with its waters, but, on the contrary, have followed the Mexican or civil law, and what is called the Colorado doctrine of prior appropriation and beneficial use, Martinez v. Cook, 1952-NMSC-034, 56 N.M. 343, 244 P.2d 134, aff'd, 1953-NMSC-043, 57 N.M. 263, 258 P.2d 375; see also 1939 Op. Att'y Gen. No. 39-3152.

Privileges in rules of evidence. — Rule 11-501 is very different from Rule 501 of the Federal Rules of Evidence which states that privileges are "governed by the privileges or the common law." The fact that New Mexico did not follow the approach of congress but instead limited the privileges available to those recognized by the constitution, the rules of evidence, or other rules of the supreme court manifests the abrogation and inapplicability of the common law evidentiary privileges. State ex rel. Attorney Gen. v. First Judicial Dist. Court, 1981-NMSC-053, 96 N.M. 254, 629 P.2d 330 (decided on basis of prior federal rules, now Cf. Fed. Rule 501).

Law reviews. — For article, "Judicial Adoption of Comparative Fault in New Mexico: The Time Is at Hand," see 10 N.M.L. Rev. 3 (1979-80).

For note, "Contingent Remainders; Rule of Destructibility Abolished in New Mexico," see 10 N.M.L. Rev. 471 (1980).

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 comment, "Contracts The Supreme Court Speaks Where the Legislature Was Silent: Torrance County Mental Health Program, Inc. v. New Mexico Health & Environment Department," see 23 N.M.L. Rev. 291 (1993).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15A Am. Jur. 2d Common Law §§ 13, 14.

Applicability of statute of frauds to promise to pay for legal services furnished to another, 84 A.L.R.4th 994.

15A C.J.S. Common Law § 11.