2020 New Mexico Statutes
Chapter 38 - Trials
Article 4 - Parties
Section 38-4-2 - [Several persons liable on contract, judgment or statute; parties defendant.]

Where two or more persons are bound by contract or by judgment, decree or statute, whether jointly only, or jointly or severally, or severally only, and including the parties to negotiable paper, common orders and checks, and sureties on the same, or separate instruments, or by any liability growing out of the same, the action thereon may, at the option of the plaintiff, be brought against any or all of them; when any of these so bound are dead, the action may be brought against any or all of the survivors with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment against any one or more of several parties jointly bound, shall not be a bar to proceedings against the others.

History: Laws 1880, ch. 6, § 5; C.L. 1884, § 1885; C.L. 1897, § 2942; Code 1915, § 4076; C.S. 1929, § 105-110; 1941 Comp., § 19-602; 1953 Comp., § 21-6-2.

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

Cross references. — For joinder of persons necessary for just adjudication, see Rule 1-019 NMRA.

For permissive joinder of parties, see Rule 1-020 NMRA.

For class actions, see Rule 1-023 NMRA.

For judgments upon multiple claims or involving multiple parties, see Rule 1-054 NMRA.

The payee of a joint and several note may look to either of the joint makers for payment, and where one of them dies, he is not compelled to pursue his remedy against the estate of the deceased debtor, nor is his action barred against another joint maker because the time has expired wherein he might have presented his claim against the estate for allowance. Newhall v. Field, 1905-NMSC-012, 13 N.M. 82, 79 P. 711.

Joint indemnity agreement construed as joint and several. — Under this section and 38-4-3 NMSA 1978, an indemnity agreement, if joint, is to be construed as being joint and several. Fidelity Nat'l Bank v. Lobo Hijo Corp., 1979-NMCA-045, 92 N.M. 737, 594 P.2d 1193, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Wife who joins with her husband on a note is jointly and severally liable and may be legally bound to pay the entire debt. A judgment on a joint and several note signed by both the husband and the wife is collectible from the community property or the separate property of either or both. Commerce Bank & Trust v. Jones, 1971-NMSC-107, 83 N.M. 236, 490 P.2d 678.

Procedure upon appeal where joint judgment erroneous. — This section and 38-4-3 NMSA 1978 having abrogated the common-law rule requiring the reversal of a judgment as to all parties jointly liable, which was erroneous as to one, the supreme court may affirm as to one, in a joint judgment, and reverse as to another. McDonald v. Mazon, 1917-NMSC-061, 23 N.M. 439, 168 P. 1069.

Law reviews. — For article, "New Mexico's Uniform Commercial Code: Who is the Beneficiary of Stop Payment Provisions of Article 4?", see 4 Nat. Resources J. 69 (1964).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 47 Am. Jur. 2d Judgments § 673 et seq.

Judgment in favor of less than all parties to contract as bar to action against other parties, 3 A.L.R. 124.

Payment of, or proceeding to collect, judgment against one tort-feasor as release of others, 27 A.L.R. 805, 65 A.L.R. 1087, 166 A.L.R. 1099, 40 A.L.R.3d 1181.

50 C.J.S. Judgments § 758.