New Mexico Statutes

N.M. Stat. § 37-2-4 (2026)

[Death of party to pending action; no abatement;

✓ current as of May 2026

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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.

                                     ANNOTATIONS

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.

Notes of Decisions

Cited in 8 cases (3 in the last 5 years), 1983–2024 · leading case: Padilla v. Est. of Griego, 830 P.2d 1348 (N.M. Ct. App. 1992).

Sort: Relevance Newest Treatment

Padilla v. Est. of Griego, 830 P.2d 1348 (N.M. Ct. App. 1992). · cites it 24× “Defendants rely on NMSA 1978, Section 37-2-4 (Repl.Pamp.1990), which reads: 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…”

Nordwall v. PHC-LAS Cruces, Inc., 960 F. Supp. 2d 1200 (D.N.M. 2013). · cites it 6× “NMSA 1978, § 37-2-4 (alteration in original).”

Oliveros v. Mitchell, 449 F.3d 1091 (10th Cir. 2006). “We note, however, that New Mexico's abatement statute affords broad protection to pending claims in the event of a party’s death and, in fact, would have saved the § 1983 claims in this case had Blouin filed them before he died.”

Romine v. Romine, 671 P.2d 651 (N.M. 1983). · cites it 2× “Respondent argues that NMSA 1978, Section 37-2-4, regarding the abatement of actions upon the death of a party, applies to divorce proceedings.”

Farley v. Bearden (D.N.M. 2022). · cites it 13× “N.M. Stat. § 37-2-4. Pursuant to the plain and literal language of the statute, no pending action of any kind is abated by the death of the plaintiff.”

Pooler v. City of Albuquerque (N.M. Ct. App. 2015). · cites it 12× “Under NMSA 1978, § 37-2-4 (1884), a 6 statutory abatement and revivor provision, dismissal of the complaint was improper.”

Barela v. City of Hobbs (D.N.M. 2024). · cites it 2× “With the benefit of the parties’ briefing, the Court agrees that Albert’s death implicates New Mexico’s abatement statute, N.M. Stat. Ann. § 37-2-4 (1978), which provides that a pending action does not abate upon the death of a plaintiff.”

Staley v. Yost (D.N.M. 2023). “§ 37-2-4 (1978). Finally, the New Mexico statute that addresses representation by a holder of general testamentary power of appointment states: To the extent there is no conflict of interest between the holder of a general testamentary power of appointment and the persons…”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.