2020 New Mexico Statutes
Chapter 38 - Trials
Article 1 - Process
Section 38-1-5 - Service of process; failure to report.

A. In case any domestic corporation or any foreign corporation authorized to transact business in this state fails to file a report within the time required, or, in case the agent of any corporation, designated by the corporation as the agent upon whom process against the corporation may be served, dies, resigns or leaves the state, or the agent cannot with due diligence be found, it is lawful, while the default continues, to serve process against the corporation upon the secretary of state, and the service shall be as effective to all intents and purposes as if made upon an officer, director or the registered agent of the corporation. The plaintiff shall include an affidavit that the registered agent has died, resigned, left the state or cannot be found. The plaintiff shall provide, if known, the name upon whom the summons and complaint is to be served and the last known address and include two copies of every paper, including the summons, complaint, attachments and affidavits.

B. Within two days after service upon the secretary of state, the secretary shall notify the corporation of service of process by certified or registered mail directed to the corporation at its registered office and enclose a copy of the process or other paper served.

C. It is the duty of the plaintiff in any action in which the process is issued to pay to the secretary of state the sum of twenty-five dollars ($25.00), which sum shall be taxed as a part of the taxable costs in the suit if the plaintiff prevails in the suit.

D. The secretary of state shall keep a record of all summonses that have been presented for service to the secretary of state, along with a summary of all that occurred in regard to the service of each summons.

History: Laws 1905, ch. 79, § 48 (2); Code 1915, § 933; C.S. 1929, § 32-150; 1941 Comp., § 19-305; 1953 Comp., § 21-3-5; 1993, ch. 184, § 1.

Compiler's notes. — This section contained only the first paragraph of Code 1915, § 933, Comp. Stat. 1929, § 32-150, the second paragraph being compiled as 51-2-37 1953 Comp. (since repealed).

Insofar as this section relates to foreign corporations, it may be partially superseded by 38-1-6 NMSA 1978. See also 53-17-11 NMSA 1978.

The report referred to in this section was the annual report required by 51-2-36 1953 Comp. (since repealed). For present provisions, see 53-5-1 NMSA 1978 et seq.

Cross references. — For corporate reports generally, see 53-5-1 NMSA 1978 et seq.

For service of process upon registered agent of domestic corporation, see 53-11-14 NMSA 1978.

For service of process upon registered agent of foreign corporation, see 53-17-11 NMSA 1978.

The 1993 amendment, effective June 18, 1993, added the section catchline; added the subsection designations; in Subsection A, deleted "by this article" following "required" and substituted "an officer, director or the registered agent" for "the president or head officers" in the first sentence and added the last two sentences; substituted "certified or registered mail" for "letter" in Subsection B; substituted "twenty-five dollars ($25.00)" for "three dollars" in Subsection C; rewrote Subsection D; and made stylistic changes throughout.

Failure of secretary of state to notify foreign corporation of service of process does not deny corporation due process of law. — Under this section, service of process on the secretary of state, in the absence of an agent of a foreign corporation, gives the court jurisdiction, although the secretary of state does not notify the foreign corporation. This does not deny the corporation due process of law. Silva v. Crombie & Co., 1935-NMSC-041, 39 N.M. 240, 44 P.2d 719.

State highway commission [state transportation commission] does not have to pay the service of process fee provided for in this section. 1964 Op. Att'y Gen. No. 64-11.

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).

For note, "The Entry and Regulation of Foreign Corporations Under New Mexico Law and Under the Model Business Corporation Act," see 6 Nat. Resources J. 617 (1966).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 19 Am. Jur. 2d Corporations §§ 2194, 2212.

Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179.

"Managing agent" of domestic corporation within statute providing for service of summons or process thereon, 71 A.L.R.2d 178.

19 C.J.S. Corporations §§ 721 to 735.