2021 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 2 - Abatement and Revivor
Section 37-2-4 - [Death of party to pending action; no abatement; exceptions.]

No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action for libel, slander, malicious prosecution, assault or assault and battery, for a nuisance or against a justice of the peace [magistrate] for misconduct in office, which shall abate by the death of the defendant.

History: Laws 1884, ch. 5, § 2; C.L. 1884, § 2139; C.L. 1897, § 3088; Code 1915, § 4265; C.S. 1929, § 105-1203; 1941 Comp., § 19-704; 1953 Comp., § 21-7-4.

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

The office of justice of the peace was abolished and its jurisdiction, powers and duties transferred to the magistrate court. See 35-1-38 NMSA 1978.

Cross references. — For death before commencement of action, see 37-2-1 NMSA 1978.

For rule relating to substitution upon death of party, see Rule 1-025 NMRA.

Application of section. — Section 37-2-4 NMSA 1978 applies only when death occurs while an action is pending; it describes which pending actions abate when one of the parties dies. Padilla v. Estate of Griego, 1992-NMCA-021, 113 N.M. 660, 830 P.2d 1348.

Effect of section. — This section gives survivability to all causes of action which are in suit when death of party occurs, except certain specified causes which abate upon the death of a defendant only. Frampton v. Santa Fe N.W. Ry., 1930-NMSC-036, 34 N.M. 660, 287 P. 694.

Section does not apply to appeals of criminal convictions. State v. Doak, 1976-NMCA-091, 89 N.M. 532, 554 P.2d 993, overruled by State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 1 Am. Jur. 2d Abatement, Survival and Revival § 43 et seq.

Survival of action or cause of action for wrongful death against representative of wrongdoer, 61 A.L.R. 830, 171 A.L.R. 1392.

Effect of death of party to divorce or annulment suit before final decree, 158 A.L.R. 1205.

Constitutionality and construction of statute authorizing continuation of pending action against foreign representative of deceased nonresident driver of motor vehicle, arising out of accident occurring in state, 18 A.L.R.2d 544.

Death of putative father before, pending or after judgment as affecting bastardy proceedings, 53 A.L.R.3d 188.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 A.L.R.4th 707.

Abatement of state criminal case by accused's death pending appeal of conviction - modern cases, 80 A.L.R.4th 189.

1 C.J.S. Abatement and Revival §§ 117 to 130.