N.M. Stat. § 37-1-14 (2026)

If, after the commencement of an action, the plaintiff fail therein for any cause,
except negligence in its prosecution, and a new suit be commenced within six months
thereafter, the second suit shall, for the purposes herein contemplated, be deemed a
continuation of the first.

History: Laws 1880, ch. 5, § 12; C.L. 1884, § 1872; C.L. 1897, § 2925; Code 1915, §
3355; C.S. 1929, § 83-110; 1941 Comp., § 27-113; 1953 Comp., § 23-1-14.

                                     ANNOTATIONS

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

"Any cause" construed. — "Any cause" as used in New Mexico's savings statute,
means any disposition without prejudice that produces or results in the failure of the
first-filed action. Zangara v. LSF9 Master Participation Tr., 2024-NMSC-021, overruling
Barbeau v. Hoppenrath, 2001-NMCA-077, 131 N.M. 124, 33 P.3d 675.

"Negligence in its prosecution" construed. — The term "negligence in its
prosecution" as used in New Mexico's savings statute, means dismissal for failure to
prosecute, which means a court's dismissal of a lawsuit because the plaintiff has failed
to pursue the case diligently toward completion. Zangara v. LSF9 Master Participation
Tr., 2024-NMSC-021, overruling Barbeau v. Hoppenrath, 2001-NMCA-077, 131 N.M.
124, 33 P.3d 675.

Dismissal for lack of standing was not "negligence in prosecution". — Where
respondent filed a foreclosure action against petitioners, which was dismissed without
prejudice for lack of standing, and where respondent then filed a second foreclosure
action against petitioners, which was dismissed with prejudice based on the district
court's conclusion that the savings statute did not apply because respondent's initial
foreclosure was a "nullity" that could not be bootstrapped to the timeliness of the first
foreclosure action, the district court erred in dismissing the second foreclosure action,
because a dismissal for lack of standing does not fall within the savings statute's
exception for "negligence in its prosecution," and therefore the second foreclosure
action was a continuation of the action that was dismissed for lack of standing. Zangara
v. LSF9 Master Participation Tr., 2024-NMSC-021, overruling Barbeau v. Hoppenrath,
2001-NMCA-077, 131 N.M. 124, 33 P.3d 675.

Res judicata in first action. — Where plaintiff's claim is barred on res judicata
grounds, plaintiff cannot invoke the savings statute to claim continuation of an action
which never existed. Murphy v. Klein Tools, Inc., 935 F.2d 1127 (10th Cir.), cert denied,
502 U.S. 952, 112 S.Ct. 407. 116 L.Ed.2d 355 (1991).

Actions filed in other states. — State statutes are applicable to actions originally filed
in sister states. Prince v. Leesona Corp., 720 F.2d 1166 (10th Cir. 1983).

Construction. — The "exception" in this section goes to the status of a new suit as a
continuation of the first and not to the right to file a new suit within the period of the
statute of limitations. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648;
City of Roswell v. Holmes, 1939-NMSC-062, 44 N.M. 1, 96 P.2d 701.

The words "for the purposes herein contemplated" referred only to the subject matter of
the particular act enacting the section (Laws 1880, ch. 5). Benally v. Pigman, 1967-
NMSC-148, 78 N.M. 189, 429 P.2d 648.

Claim of continuation must be made in trial court and reflected in the record (though
not necessarily in the pleadings). State ex rel. Brown v. Hatley, 1969-NMSC-018, 80
N.M. 24, 450 P.2d 624.

Failure to claim continuation. — Action filed after statute had run, subsequent to
dismissal of timely first action, was properly dismissed by trial court where no reference
to or request for recognition of the first action was made therein. Miller v. Smith, 1955-
NMSC-021, 59 N.M. 235, 282 P.2d 715.

Substantial similarity required. — For a complaint to be considered a continuation of
a prior complaint, both must be substantially the same, involving the same parties, the
same cause of action and the same right, and this must appear from the record. Rito
Cebolla Invs., Ltd. v. Golden W. Land Corp., 1980-NMCA-028, 94 N.M. 121, 607 P.2d
659.

New remedy qualified by time limitation on exercise of right. — Where a statute
grants a new remedy and at the same time places a limitation of time within which the
person complaining must act, the limitation is a limitation of the right as well as the
remedy and, in the absence of qualifying provisions or saving clauses, the party seeking
to avail himself of the remedy must bring himself strictly within the limitations. Ortega v.
Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds by
Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

Second cause as continuation of first. — Where dismissal of first suit was not based
upon the discretionary power of the court to dismiss stale claims, nor was there any
finding or conclusion regarding negligence of plaintiffs in prosecuting that cause, the
second cause having been filed within six months after the dismissal of the first was a
continuation thereof and not barred by the statute of limitations. Benally v. Pigman,
1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Voluntary dismissal did not trigger the saving statute. — Where plaintiffs, the
owners of a racehorse, filed lawsuits against defendant, a veterinary services provider,
claiming veterinary malpractice, gross negligence, and violation of the New Mexico
Unfair Trade Practice Act, and where plaintiffs voluntarily dismissed the first two
lawsuits, which were filed within the four-year statute of limitations, and filed a third
lawsuit after the statute of limitations had expired, and where plaintiffs argued that the
third suit was timely under New Mexico's saving statue, plaintiffs third lawsuit was
untimely, because the suit did not "fail" because of a practical inability to pursue the
claim and therefore the voluntary dismissal did not trigger the saving statute. A properly
initiated action that is voluntarily dismissed is not deemed a "failure" within the meaning
of the statue. Dale v. Equine Sports Medicine & Surgery Racehorse Serv., PLLC, 836
Fed.Appx. 657 (10th Cir. 2020).

Action not barred. — Where the record in the trial court adequately shows that the
mandamus action by teacher seeking hearing on termination and tenure is a
continuation of the older one, being based on substantially the same cause of action
and involving substantially the same parties, it is not barred by statute of limitations.
State ex rel. Brown v. Hatley, 1969-NMSC-018, 80 N.M. 24, 450 P.2d 624. For
subsequent appeal, see State ex rel. Brown v. Hatley, 1973-NMSC-027, 84 N.M. 694,
507 P.2d 441.
Negligent prosecution of first suit. — The statute of limitations on a cause of action is
tolled if a new suit setting forth essentially the same cause of action between the same
parties is commenced within six months after a dismissal, except when the dismissal
was based on the plaintiff's failure to pursue his claim. United States Fire Ins. Co. v.
Aeronautics, Inc., 1988-NMSC-051, 107 N.M. 320, 757 P.2d 790.

Where there was negligence in the prosecution of the first case, the second complaint
was not a continuation of the first, and was barred by the statute of limitations. Benally
v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Failure to prosecute and negligence in the prosecution are one and the same for
purposes of this section. Barbeau v. Hoppenrath, 2001-NMCA-077, 131 N.M. 124, 33
P.3d 675, overruled by Zangara v. LSF9 Master Participation Tr., 2024-NMSC-021.

Summary judgment for defendants was proper and personal injury plaintiffs were not
entitled to the protection of the savings statute where they negligently failed to file suit
until two days before the expiration of the statute of limitations and filed their complaint
in the wrong jurisdiction, then sought relief under the savings statute. Barbeau v.
Hoppenrath, 2001-NMCA-077, 131 N.M. 124, 33 P.3d 675, overruled by Zangara v.
LSF9 Master Participation Tr., 2024-NMSC-021.

Filing in improper venue was not negligent prosecution. — Where plaintiff filed a
subrogation action in Bernalillo county before the statute of limitations period had
expired; the district court dismissed the action without prejudice for lack of venue; and
plaintiff filed a new complaint in Santa Fe county after the statute of limitations period
had expired, plaintiff's venue mistake did not constitute negligent prosecution and the
Santa Fe county action was a continuation of the Bernalillo county action. AMICA Mut.
Ins. Co. v. McRostie, 2006-NMCA-046, 139 N.M. 486, 134 P.3d 773, cert. denied, 2006-
NMCERT-004, 139 N.M. 429, 134 P.3d 120.

A dismissal for failure to prosecute is functionally the same as a dismissal for
negligence in prosecution. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't
of Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Where an action is dismissed without prejudice because of a failure to prosecute, the
action will be deemed not to interrupt the running of an otherwise applicable statute of
limitations, and a subsequent suit filed on the same claim as the first after the statute
has run will be barred. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of
Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Dismissal of federal court suit for lack of diversity. — Where plaintiff filed a
personal injury suit in federal district court alleging that there was complete diversity of
citizenship between plaintiff and defendants; the federal district court found that
defendants were citizens of New Mexico and dismissed plaintiff’s suit without prejudice
for lack of subject matter jurisdiction because complete diversity did not exist; plaintiff
refilled the suit in state district court as a continuation of the federal court suit; and
defendant’s evidence failed to show that plaintiff knew or reasonably should have
known or that plaintiff’s attorneys knew or reasonably should have known that
defendants were corporate citizens of New Mexico when plaintiff filed the federal court
complaint, plaintiff’s state court case was a continuation of the federal court case
because defendants did not make a prima facie showing that plaintiff was negligent in
prosecution of the federal court case as a matter of law. Foster v. Sun Healthcare
Group, Inc., 2012-NMCA-072, 284 P.3d 389, cert. denied, 2012-NMCERT-006.

Dismissal for failure to prosecute. — When an action is dismissed without prejudice
because of a failure to prosecute, the interruption of the statute of limitations is
considered as never having occurred. Meiboom v. Watson, 2000-NMSC-004, 128 N.M.
536, 994 P.2d 1154.

No continuation of null suit. — Complaint brought against a defendant who is dead or
nonexistent may not be amended, after the period of the statute of limitation has
expired, so as to bring in a defendant having the capacity to be sued, the rule of relation
back not applying since there was no suit to relate back to. Mercer v. Morgan, 1974-
NMCA-102, 86 N.M. 711, 526 P.2d 1304.

Savings statute inapplicable where initial lawsuit was untimely as a matter of law.
— Where plaintiff, a Texas resident, first filed suit in Texas state court seeking damages
allegedly arising from injuries sustained in an oil field accident that occurred in New
Mexico against the owner and operator of the oil field, and asserting that the case was
governed by New Mexico law, and where defendant filed a motion for summary
judgment, arguing that the two-year Texas statute of limitations applied and the case
should be dismissed because it was filed after the statute of limitations expired, and
where the Texas court granted the summary judgment motion, dismissing the case with
prejudice, and where plaintiff then filed suit against defendant in New Mexico, and
where defendant again filed a motion for summary judgment, this time based on the
expiration of the three-year New Mexico statute of limitations, and where, in response,
plaintiff argued that New Mexico's savings statute applied, that the New Mexico case
was filed within six months of the Texas dismissal, and that the New Mexico case was a
continuation of the Texas case and therefore timely filed, the district court did not err in
granting defendant's motion for summary judgment, because New Mexico's savings
statute did not apply. Because the Texas limitation period had expired before plaintiff's
action was filed, the commencement of the Texas action in Texas could not toll the
running of the New Mexico limitation period under the savings statute; the expiration of
the applicable Texas limitation period barred the action as untimely before it was filed in
Texas and there was therefore no valid action to save in New Mexico after the New
Mexico limitation period expired. Moreno v. Ranger Energy Servs., LLC, 2024-NMCA-
065, cert. granted.

Judgment upon merits would operate as bar to new suit. Cartwright v. Public Serv.
Co., 1961-NMSC-074, 68 N.M. 418, 362 P.2d 796, overruled on other grounds by State
ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
This section applies only where the original action has failed other than on the merits or
where no final judgment on the merits has been entered in the first action; it is
inapplicable where the original action has been dismissed after a trial on the merits, or
where the judgment entered therein is a final judgment on the merits or where the
judgment is res judicata. Cartwright v. Public Serv. Co., 1961-NMSC-074, 68 N.M. 418,
362 P.2d 796,overruled on other grounds by State ex rel. Martinez v. City of Las Vegas,
2004-NMSC-009, 135 N.M. 375, 89 P.3d 47; Rowe v. LeMaster, 225 F.3d 1173 (10th
Cir. 2000).

Time-barred action could not be continued. — Where plaintiff filed an action in state
court under 42 U.S.C., §1983; the state court dismissed plaintiff’s action on the ground
that it was barred by statute of limitations; and plaintiff filed the same action in federal
court, plaintiff’s action in federal court was not a continuation of plaintiff’s state court
action, because plaintiff’s state court action was time-barred and plaintiff did not have
an action to continue in federal court. DeVargas v. Montoya, 796 F.2d 1245 (10th Cir.
1986), but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).

Section 37-1-14 NMSA 1978 applies to a dismissal for lack of venue. AMICA Mut.
Ins. Co. v. McRostie, 2006-NMCA-046, 139 N.M. 486, 134 P.3d 734, cert. denied, 2006-
NMCERT-004, 139 N.M. 429, 134 P.3d 120

Section is inapplicable to New Mexico Wrongful Death Act. Perry v. Staver, 1970-
NMCA-096, 81 N.M. 766, 473 P.2d 380.

This section does not apply to actions under Tort Claims Act, Article 4 of Chapter
41. Estate of Gutierrez v. Albuquerque Police Dep't, 1986-NMCA-023, 104 N.M. 111,
717 P.2d 87, cert. denied sub nom. Haney v. Albuquerque Police Dep't, 103 N.M. 798,
715 P.2d 71 (1986), overruled on other grounds by Bracken v. Yates Petroleum Corp.,
1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

Worker's compensation claims. — Section 37-1-17 NMSA 1978 prohibits this section
from applying in worker's compensation and occupational disablement cases, since
both the Workmen's (Workers') Compensation Act and the Occupational Disablement
Law contain specific statutes of limitations, 52-1-31 and 52-3-16 NMSA 1978, and
neither act provides a saving clause allowing for an extension of the specified time limit
for filing a claim. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323,
overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072,
107 N.M. 463, 760 P.2d 155.

This section does not apply to breach of contract suits against the state.
Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1990-
NMSC-013, 109 N.M. 492, 787 P.2d 411.

Contractual limitation not extended. — Limitation contained in insurance policy for
bringing suit (which was issued prior to enactment of statute prohibiting issuance of
other than standard policies) was contractual, and not statutory, and was not extended
by statutory provision that, for purpose of computing limitations, a new suit commenced
within six months after a former suit has failed, shall be deemed a continuance of the
first. Davis v. United States Fire Ins. Co., 1931-NMSC-012, 35 N.M. 381, 298 P. 671.

Amendment of complaint. — An amended complaint will take effect by relation,
avoiding the bar of the statute if the original pleading was timely, and if the identity of
the cause has been preserved, and does not bring in a new cause of action. A
complaint in suit on notes abandoning the allegation that defendant executed the notes
in his own name, and alleging by amendment that he executed the notes as of a
partnership, is not a new cause of action. Harris v. Singh, 1933-NMSC-091, 38 N.M. 47,
28 P.2d 1.

"Equitable" or nonstatutory tolling doctrine. — New Mexico has adopted an
"equitable" or nonstatutory tolling principle alongside the statutory tolling provisions in
this chapter. This nonstatutory tolling doctrine, however, should be subject to the same
exception or limitation as applies in the statutory situations: Where an action is
dismissed for failure to prosecute (negligence in its prosecution), the limitations period
will not be interrupted. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of
Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Law reviews. — For comment on Cartwright v. Public Serv. Co., 66 N.M. 64, 343 P.2d
654 (1959), see 8 Nat. Resources J. 727 (1968).

For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L.
Rev. 1 (1981).

For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Limitations of Actions §§
301 to 315.

Character or kind of action or proceeding within operation of statute which permits new
action after expiration of period of limitation, upon failure of previous action commenced
within the period, 79 A.L.R.2d 1309.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Statute permitting new action, after failure of original action timely commenced, as
applicable where original action was filed in another state, 55 A.L.R.2d 1038.

Voluntary dismissal or nonsuit as within provision of statute extending time for new
action in case of dismissal or failure of original action otherwise than upon the merits, 79
A.L.R.2d 1290.

Character or kind of action or proceeding within operation of statute permitting new
action after limitation period, upon failure of timely action, 79 A.L.R.2d 1309.
Statute permitting new action, after failure of original action commenced within period of
limitation, as applicable in cases where original action failed for lack of jurisdiction, 6
A.L.R.3d 1043.

Application to period of limitations fixed by contract, of statute permitting new action to
be brought within specified time after failure of prior action for cause other than on the
merits, 16 A.L.R.3d 452.

54 C.J.S. Limitation of Actions §§ 240 to 249.