Section 35-12-1 - Garnishment; affidavit and bond; grounds. - New Mexico Statutes

35-12-1. Garnishment; affidavit and bond; grounds.

A.     Garnishment may be issued in advance of judgment in a civil action in the magistrate court only upon the filing of a civil complaint, accompanied by:   

(1)     a bond to the defendant, with sufficient sureties, in double the sum claimed in the complaint, conditioned that the plaintiff will diligently prosecute the action to final judgment without delay, will pay to the defendant all money found due to him in the action and will pay the defendant and the garnishee all damages and costs sustained from the garnishment if no judgment is recovered from the defendant in the action; and   

(2)     an affidavit of the plaintiff that one or more of the following facts exists:   

(a)     the defendant has no property in his possession within this state subject to execution to satisfy the amount claimed in the complaint; or   

(b)     one or more of the grounds for issuance of attachment in the magistrate court, the applicable grounds to be stated in the affidavit.   

B.     Garnishment may be issued in aid of execution of judgment entered in a civil action in the magistrate court only upon the filing in the action of an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment.   

C.     Garnishment may be issued in the magistrate court in aid of execution of judgment, which was entered in a civil action in some other court in this state and the unpaid balance of which does not exceed the jurisdictional amount of the magistrate court, only upon the filing of a civil complaint together with a certified copy of the judgment and an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment.   

D.     The affidavit under Subsections A through C shall include a statement that the plaintiff believes that a named garnishee:   

(1)     is indebted to the defendant and that the debt is not exempt from garnishment; or   

(2)     holds personal property belonging to the defendant.   

E.     Any magistrate who issues a garnishment in any civil action except in compliance with the provisions of this section is guilty of a petty misdemeanor and shall be removed from office.