2021 New Mexico Statutes
Chapter 34 - Court Structure and Administration
Article 7 - Probate Courts
Section 34-7-9 - [Probate judge interested or disqualified; transfer to district court.]
Whenever the probate judge shall, for any reason, be interested or disqualified from acting in any proceeding coming within the jurisdiction of the probate court, he shall upon his own motion or that of any interested party, forthwith enter an order transferring such proceeding to the district court having jurisdiction in that county and directing the probate clerk to deposit forthwith within the office of the clerk of said district court a certified copy of said order together with all original papers and records or certified copies of all original papers and records in the probate court relating to said proceeding.
History: Laws 1889, ch. 132, § 1; C.L. 1897, § 751; Code 1915, § 1433; C.S. 1929, § 34-414; Laws 1933, ch. 102, § 1; 1941 Comp., § 16-412; 1953 Comp., § 16-4-12.
ANNOTATIONSCross references. — For disqualification of judges, see N.M. Const., art. VI, § 18.
For performance of acts and orders when probate judge is unable to act, see 45-1-307 NMSA 1978.
More than belief of partiality required. — In light of the provisions of this section, which requires an actual interest or disqualification, 38-3-9 NMSA 1978, which requires only a belief of partiality, does not apply to probate judges. In re Estate of Tarlton, 1972-NMSC-060, 84 N.M. 95, 500 P.2d 180.
Disqualification not automatic on filing motions. — This section is merely a statutory declaration of N.M. Const., art. VI, § 18, which prohibits any judge from sitting in any cause in which the judge has an interest except by consent of the parties. A creditor's motion cannot act to automatically transfer the cause; it is necessary for the creditor to direct the court's attention to the grounds for disqualification. In re Estate of Tarlton, 1972-NMSC-060, 84 N.M. 95, 500 P.2d 180.
