N.M. Stat. § 38-3-1 (2026)

commenced.
   All civil actions commenced in the district courts shall be brought and shall be
commenced in counties as follows and not otherwise:

    A. First, except as provided in Subsection F of this section relating to foreign
corporations, all transitory actions shall be brought in the county where either the
plaintiff or defendant, or any one of them in case there is more than one of either,
resides; or second, in the county where the contract sued on was made or is to be
performed or where the cause of action originated or indebtedness sued on was
incurred; or third, in any county in which the defendant or either of them may be found in
the judicial district where the defendant resides.

    B. When the defendant has rendered himself liable to a civil action by any criminal
act, suit may be instituted against the defendant in the county in which the offense was
committed or in which the defendant may be found or in the county where the plaintiff
resides.

   C. When suit is brought for the recovery of personal property other than money, it
may be brought as provided in this section or in the county where the property may be
found.

    D. (1) When lands or any interest in lands are the object of any suit in whole or in
part, the suit shall be brought in the county where the land or any portion of the land is
situate.

       (2)     Provided that where such lands are located in more than one county and
are contiguous, that suit may be brought as to all of the lands in any county in which a
portion of the lands is situate, with the same force and effect as though the suit had
been prosecuted in each county in which any of the lands are situate. In all such cases
in which suit is prosecuted in one county as to contiguous lands in more than one
county, notice of lis pendens shall be filed pursuant to Sections 38-1-14 and 38-1-15
NMSA 1978 in each county. For purposes of service of process pursuant to Rule 4
[Rule 1-004 NMRA] of the Rules of Civil Procedure for the District Courts, any such suit
involving contiguous lands located in more than one county shall be deemed pending in
each county in which any portion of the land is located from the date of filing of the lis
pendens notice.

   E. Suits for trespass on land shall be brought as provided in Subsection A of this
section or in the county where the land or any portion of the land is situate.
    F. Suits may be brought against transient persons or non-residents in any county of
this state, except that suits against foreign corporations admitted to do business and
which designate and maintain a statutory agent in this state upon whom service of
process may be had shall only be brought in the county where the plaintiff, or any one of
them in case there is more than one, resides or in the county where the contract sued
on was made or is to be performed or where the cause of action originated or
indebtedness sued on was incurred or in the county where the statutory agent
designated by the foreign corporation resides.

    G. Suits against any state officers as such shall be brought in the court of the county
in which their offices are located, at the capital or in the county where a plaintiff, or any
one of them in case there is more than one, resides, except that suits against the
officers or employees of a state educational institution as defined in Article 12, Section
11 of the constitution of New Mexico, as such, shall be brought in the district court of the
county in which the principal office of the state educational institution is located or the
district court of the county where the plaintiff resides.

History: Laws 1875-1876, ch. 2, § 1; C.L. 1884, § 1893; C.L. 1897, § 2950; Laws 1899,
ch. 80, § 16; Code 1915, § 5567; C.S. 1929, § 147-101; 1941 Comp., § 19-501; Laws
1951, ch. 121, § 1; 1953 Comp., § 21-5-1; Laws 1955, ch. 258, § 1; 1957, ch. 124, § 1;
1981, ch. 70, § 1; 1988, ch. 8, § 1.

                                     ANNOTATIONS

Cross references. — For service of process outside of state, see 38-1-16 NMSA 1978.

For secretary of state as agent for service of process, see 13-4-22 NMSA 1978.

For ability to serve civil process as prerequisite to transfer of lands between United
States and New Mexico, see 19-2-3 NMSA 1978.

For venue in criminal cases, see 30-1-14 NMSA 1978.

For magistrate court jurisdiction, see 35-3-6 NMSA 1978.

For venue of actions for specific performance of contracts for sale of real estate, see 42-
7-1 NMSA 1978.

For jurisdiction under Uniform Owner-Resident Relations Act, see 47-8-10 NMSA 1978.

For effect of Rules of Civil Procedure for District Courts upon venue of actions, see Rule
1-082 NMRA.

For civil process in the district court, see Rule 1-004 NMRA.
The 1988 amendment, effective February 18, 1988, made minor stylistic changes
throughout the section; substituted "Rule 4" for "Rule 4(g)" in Subsection D(2); and
substituted "or in the county where a plaintiff, or any one of them in case there is more
than one, resides" for "and not elsewhere" in Subsection G.

                          I.     GENERAL CONSIDERATION.

A domestic corporation does not reside in a county for venue purposes solely
because its registered agent for service of process is located therein. Blancett v. Dial Oil
Company, 2008-NMSC-011, 143 N.M. 368, 176 P.3d 1100.

Classification of foreign corporations not violative of equal protection. — The
classification of foreign corporations in this section is not so arbitrary or unreasonable
as to constitute a denial of equal protection. Aetna Fin. Co. v. Gutierrez, 1981-NMSC-
090, 96 N.M. 538, 632 P.2d 1176, overruled on other grounds by Cooper v. Chevron
USA, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.

Application of amended section to "pending" cases. — Section 34 of article IV of
the New Mexico Constitution, which prohibits the legislature from changing the rules of
procedure applicable to any pending case, requires that venue in a suit filed prior to
1990 be governed by the pre-1990 version of 38-3-1 NMSA 1978, notwithstanding the
fact that the jurisdiction of the state court was suspended while the case was removed
to federal court and subsequently remanded back to the state court. Appellant's
argument that as a result of the case's removal from state court to federal district court
the case was not "pending" when the venue statute was amended was erroneous.
Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115
N.M. 229, 849 P.2d 372.

Effect of supreme court decision after venue ruling. — Unsuccessful plaintiff, who
had opposed defendant's motion for transfer of venue on grounds of forum non
conveniens, was not entitled to Rule 1-060 NMRA relief based on a case decided
subsequent to the ruling on the venue motion. Stein v. Alpine Sports, 1998-NMSC-040,
126 N.M. 258, 968 P.2d 769.

Venue defined. — The venue of an action is its place of trial. Peisker v. Chavez, 1942-
NMSC-004, 46 N.M. 159, 123 P.2d 726.

This venue statute is not to be equated with jurisdiction. Jones v. N.M. State Hwy.
Dep't, 1979-NMSC-033, 92 N.M. 671, 593 P.2d 1074.

Jurisdiction and venue distinguished. — Venue in the technical meaning of the term,
means the place where a case is to be tried, whereas jurisdiction does not refer to the
place of trial, but to the power of the court to hear and determine the case. Kalosha v.
Novick, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Section does not provide for the venue of cross-claims. Hughes v. Joe G. Maloof &
Co., 1973-NMCA-002, 84 N.M. 516, 505 P.2d 859.

Dismissal without prejudice for improper venue is a final, appealable order.
Sunwest Bank v. Nelson, 1998-NMSC-012, 125 N.M. 170, 958 P.2d 740.

Applicability of section to condemnation proceedings. — In the absence of statute,
there is no right to change the venue in a condemnation proceedings, even if such a
proceeding is an action at law, and even though a change of venue is authorized by
statute, a party is not entitled to such change if no good reason therefor is shown.
Under a statute authorizing a change of venue in a civil action, according to some
authorities, a change of venue may be had in a condemnation proceeding, on a timely
application therefor, and the court to which the case is transmitted obtains jurisdiction to
dispose of the condemnation proceeding. On the other hand, according to other
authorities, a change of venue of the proceeding cannot be had under such statute,
since a condemnation proceeding is a special proceeding. City of Tucumcari v.
Magnolia Petroleum Co., 1953-NMSC-046, 57 N.M. 392, 259 P.2d 351.

Waiver of venue. — This section and its various subsections deal merely with venue as
distinguished from jurisdiction, and the rights conferred by such section and its
subsections may be waived. Kalosha v. Novick, 1973-NMSC-010, 84 N.M. 502, 505
P.2d 845.

Lack or want of jurisdiction of a court over the parties which is dependent upon plaintiff's
residence is waived by the defendant by failure to properly present the issue prior to
answering to the merits. Romero v. Hopewell, 1922-NMSC-037, 28 N.M. 259, 210 P.
231.

Forum non conveniens. — The doctrine of forum non conveniens is inapplicable to
motions to transfer a lawsuit intrastate from one county to another. First Fin. Trust Co. v.
Scott, 1996-NMSC-065, 122 N.M. 572, 929 P.2d 263.

                     II.    TRANSITORY ACTIONS GENERALLY.

Compiler's notes. — The 1915 Code compilers deleted from the end of Subsection A:
"Provided, That if suit is brought against any defendant out of the county but within the
judicial district in which he resides, process shall be personally served on such
defendant not less than fifteen days before the first day of the term to which the process
shall be returnable, and if brought in any judicial district other than that in which the
defendant or either of them resides, process shall be served on such defendant or
defendants not less than thirty days before the first day of the term to which said
process may be returnable."

Residency of national banking association. — A national banking association with a
principal place of business in a county in New Mexico is a resident of New Mexico and
of that county for purposes of venue selection under Subsection A. Sunwest Bank v.
Nelson, 1998-NMSC-012, 125 N.M. 170, 958 P.2d 740.

When there are two plaintiffs in a lawsuit action may be brought in the county in
which either of them resides. Torres v. Gamble, 1966-NMSC-024, 75 N.M. 741, 410
P.2d 959.

Where transitory action is brought against more than one defendant, the
residence of one of these defendants will determine the venue of an action against
all if such party is essential to the action and has not been joined merely for the purpose
of bringing the action in the county of his abode. Teaver v. Miller, 1949-NMSC-043, 53
N.M. 345, 208 P.2d 156.

Venue of a transitory action in the nature of quo warranto may be in the county of
residence of either plaintiff or defendant. State ex rel. Parsons Mining Co. v. McClure,
1913-NMSC-034, 17 N.M. 694, 133 P. 1063.

Action in the nature of quo warranto in intrusion into office proceeding is governed by
this section and must be brought in the county where the intrusion took place. State ex
rel. Hannett v. District Court, 1925-NMSC-004, 30 N.M. 300, 233 P. 1002.

Action by nonresident. — Where, at the time of the filing of a medical malpractice
action, plaintiff no longer resided in New Mexico, under Subsection A she was required
to file suit either in the county where the defendant actually resided, or where the cause
of action originated, or in some other county of the judicial district wherein defendant
could be actually served with a copy of the complaint and summons. Hamby v.
Gonzales, 1987-NMCA-057, 105 N.M. 778, 737 P.2d 559, cert. denied, 105 N.M. 720,
737 P.2d 79.

The term "transitory", as used in Subsection A, does not evidence an intent by the
legislature to permit a nonresident plaintiff, in her discretion, to select any county within
the same judicial district in which to properly file her cause of action against the
defendant. Hamby v. Gonzales, 1987-NMCA-057, 105 N.M. 778, 737 P.2d 559, cert.
denied, 105 N.M. 720, 737 P.2d 79.

Action by environmental improvement division. — An action by which the
environmental improvement division sought an administrative warrant for inspection
under the Hazardous Waste Act, Chapter 74, Article 4 NMSA 1978, is a transitory action
and venue is controlled by Subsection A of this section, which allows an action to be
brought in a county where the plaintiff resides. N.M. Envtl. Improvement Div. v. Climax
Chem. Co., 1986-NMCA-137, 105 N.M. 439, 733 P.2d 1322, cert. denied, 105 N.M.
421, 733 P.2d 869.

Tortious injury to land. — Actions seeking damages or injunctive relief for tortious
injury to land are transitory actions subject to the venue rules of Subsection A. Cooper
v. Amerada Hess Corp., 2000-NMCA-100, 129 N.M. 710, 13 P.3d 68, aff'd sub nom.
Cooper v. Chevron U.S.A., 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.

Venue held proper. — Where civil suit was filed in one county of the judicial district in
which defendant resided, but defendant resided in adjoining county, defendant was
properly "found in the county" within the meaning of this subsection when, after being
informed by sheriff of county where suit was filed that he was to be served with
"papers," he drove into that county and picked up the papers. Empire Fire & Marine Ins.
Co. v. Lee, 1974-NMCA-116, 86 N.M. 739, 527 P.2d 502).

Venue held improper. — Where suit is between two parties resident in the same
county, and arises out of a contract for the sale of real estate made and executed and to
be performed in that county, venue is improper when the suit is brought in the county in
which the real estate is located. Rito Cebolla Invs., Ltd. v. Golden W. Land Corp., 1980-
NMCA-028, 94 N.M. 121, 607 P.2d 659.

       III.    ACTIONS UPON LIABILITIES ARISING FROM CRIMINAL ACTS.

Venue in wrongful death action between nonresidents. — The mere fact that the
wrongful act complained of may have been criminal in character can have no bearing on
the transitory nature of an action to recover damages therefor. The action is transitory,
and being transitory it falls squarely within the permissive effect of this section,
authorizing suit against a nonresident in any county in the state and as well within the
language of Section 41-2-3 NMSA 1978, authorizing a plaintiff in an action against a
nonresident growing out of an accident or a collision in which the latter's automobile is
involved, to file his complaint in any one of the district courts of the state. State ex rel.
Appelby v. District Court, 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.

    IV.       ACTIONS INVOLVING LAND OR INTERESTS IN LAND GENERALLY.

An “interest in lands” construed within the meaning of NMSA 1978, 38-3-1(D)(1).
— Where plaintiff sought a judgment declaring that the commissioner of public lands of
the State of New Mexico (Commissioner) violated state land office rules when she
issued two wind energy leases that overlapped with some of the land she had
previously leased to plaintiff for grazing, and where the Commissioner challenged the
district court’s order that venue was proper in Lincoln county, claiming that venue was
proper either in Bernalillo county, where plaintiff resides, or Santa Fe county, where the
Commissioner resides, the district court erred in finding that venue was proper in
Lincoln county under NMSA 1978, Section 38-3-1(D)(1), because the relief that plaintiff
sought did not implicate an interest in lands as its object; the plain language of Section
38-3-1(D)(1) points to the conclusion that plaintiff’s suit does not have an interest in
lands as its object because the relief plaintiff seeks would not affect a current
possessory interest or any interest established by the agricultural lease and would only
potentially affect the usability of the land in the future. A lawsuit has an interest in lands
as its object under Section 38-3-1(D)(1) when the judgment sought could create,
transfer, or revoke title or a possessory interest in land. Blanchard Corona Ranch v.
Richard, 2025-NMSC-026.

Suit for foreclosure of mortgage on real estate. — Venue of suit for the foreclosure
of a mortgage on real estate is determined by this section as the county in which the
land is situated. Riverside Irrigation Co. v. Cadwell, 1916-NMSC-033, 21 N.M. 666, 158
P. 644.

Suit to redeem lands from sale under decree of court must be brought in the county
where the lands are situate. Catron v. Gallup Fire Brick Co., 1929-NMSC-029, 34 N.M.
45, 277 P. 32, overruled on other grounds by Kalosha v. Novick, 1973-NMSC-010, 84
N.M. 502, 505 P.2d 845.

Action to compel execution of conveyance by grantees of land. — Subsection D
applies to a suit to compel grantees of land to execute conveyances vesting title in
judgment debtor so as to permit plaintiff to obtain execution on judgment. Atler v. Stolz,
1934-NMSC-079, 38 N.M. 529, 37 P.2d 243, overruled on other grounds by Kalosha v.
Novick, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.

Venue similar to quiet title venue. — Subsection D(1) is similar to the special venue
provision contained in the statute authorizing an action to quiet title, 42-6-1 NMSA 1978.
Both permit an action concerning land to be brought in the county in which the land or
any portion of it is located. Gonzales v. Gonzales, 1993-NMCA-159, 116 N.M. 838, 867
P.2d 1220.

Injunction to prohibit issuance of deed. — Venue is in the county in which the real
estate involved is located when a party seeks an injunction to prohibit another from
obtaining a special warranty deed, and also seeks recision of the real estate contract.
Naumburg v. Cummins, 1982-NMSC-086, 98 N.M. 274, 648 P.2d 313.

Where land involved in suit was originally a part of one county, but, by various
legislative enactments changing the boundaries of counties and creating new counties,
it had come to be within the limits of another county, the suit was properly brought within
that other county. Bent v. Maxwell Land Grant & Ry., 1884-NMSC-020, 3 N.M. (Gild.)
227, 3 P. 721.

Contiguous parcels in different counties. — Subsection D(2) requires that tracts
located in different counties be contiguous to one another at the time the dispute arises
before an exception to the general venue provision is available. Gonzales v. Gonzales,
1993-NMCA-159, 116 N.M. 838, 867 P.2d 1220.

Where petition for intervention asserted entitlement to 1/8th interest in oil and gas
lease, the suit was one in which an interest in lands was the object within the meaning
of this section. Heath v. Gray, 1954-NMSC-087, 58 N.M. 665, 274 P.2d 620.
Action for damages for and injunction restraining further cutting of trees on land.
— While suit for damages for cutting trees on land would be maintainable in county
other than that in which the land was situate, where the complaint also sought injunction
against further cutting of trees, and to restrain defendant from claiming any interest in
the land, it involved an interest in the land, and was maintainable only in the county in
which the land was situate. Jemez Land Co. v. Garcia, 1910-NMSC-013, 15 N.M. 316,
107 P. 683, overruled on other grounds by Kalosha v. Novick, 1973-NMSC-010, 84
N.M. 502, 505 P.2d 845.

Action for damages only. — An action against an oil and gas operation alleging
property damage and personal injury, but not requesting injunctive relief, does not have
land or an interest in land as its object and is not controlled by Subsection D, requiring
the suit to be brought in the county where the land is situated. Cooper v. Chevron
U.S.A., Inc., 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.

Declaratory action by city against village to determine authority over subdivision,
platting and zoning of certain lands. — Venue in a declaratory suit by the city of
Albuquerque against the village of Corrales and its mayor, to secure a determination of
the city's authority over the subdivision, platting and zoning of lands lying within
Bernalillo county within five miles of the city's boundary, should have been laid in
adjoining Sandoval county where Corrales maintained all of its municipal offices and
wherein all the territory it encompassed lay, except for lands which it had purportedly
annexed, in Bernalillo county; the subdivision, platting and zoning authority of
Albuquerque over the land in question was not an interest in land within the
contemplation of Subsection D(1) of this section and the applicable venue statute was
38-3-2 NMSA 1978. City of Albuquerque v. Village of Corrales, 1975-NMSC-043, 88
N.M. 185, 539 P.2d 205.

Water rights suit involving state official. — Venue for a suit governing the
adjudication of water rights was properly brought in the county having jurisdiction over
the stream system pursuant to Subsection D(1) as opposed to the county wherein the
state engineer had his offices pursuant to Subsection (G). Because the county district
court wherein the stream system was located properly had venue over the water rights
adjudication, 72-4-17 NMSA 1978 required that that court have exclusive jurisdiction
over all questions relating to the water rights involved, including those against the state
engineer. Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-
009, 115 N.M. 229, 849 P.2d 372.

Waiver of venue. Kalosha v. Novick, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.

                    V.     ACTIONS FOR TRESPASS UPON LAND.

Waiver of venue. — The county in which an action shall be tried may be agreed upon
by the parties. Or if the county in which the action is brought is not the proper one for
the trial thereof, the action may nevertheless be tried therein unless the defendant by
proper objection demand that it be tried in the county prescribed by law. But the
objection must be raised prior to trial or it will be deemed waived. And any conduct on
the part of the defendant manifesting satisfaction with the venue until after the trial, or
defendant's abiding by it until the matter has proceeded to a hearing will be sufficient to
constitute a waiver. Heron v. Gaylor, 1948-NMSC-072, 53 N.M. 44, 201 P.2d 366.

A complaint alleging trespass and nuisance properly filed as a transitory action.
— Where plaintiff filed a complaint alleging trespass and nuisance in connection with
the development of a wind farm, claiming that defendants, private companies in the
wind energy business, damaged roads, fences, and grazing lands, removed, tampered
with, or destroyed "No Trespassing" signs on plaintiff's property, and also created a
nuisance by installing an electric grounding system on plaintiff's fence which posed a
risk of serious injury or death to people, livestock and game, and where defendants
sought dismissal for improper venue, claiming that because the object of plaintiff's
complaint is a dispute over ownership of and access to property, the suit must be filed in
the county in which the land is located rather than the county in which plaintiff resides,
the district court did not err in denying defendants' motion to dismiss because the proper
venue for trespass and nuisance actions seeking to restrain future invasions is the
county where either the plaintiff or defendant resides, and in this case, the complaint
does not have as its object land or any interests in land within the meaning of
Subsection (D)(1) of this section, and was therefore properly filed as a transitory action
under Subsection (E) and (A) of this section. Kaywal, Inc. v. Avangrid Renewables,
Inc., 2021-NMCA-037, cert. denied.

Noneconomic damages are available in trespass and private nuisance actions. —
Trespass is a direct infringement of another’s right of possession, and private nuisance,
which is akin to trespass, is an in personam action for tortious interference with one’s
use and enjoyment of land. Noneconomic damages, including damages to compensate
for annoyance, discomfort, and inconvenience, are available in trespass and private
nuisance actions, both of which seek to remedy invasions of property rights. It is for the
trier of fact to determine the amount of damages, in view of the discomfort or annoyance
to which the plaintiffs have been subjected. 2024 Op. Att'y Gen. No. 24-05.

           VI.    ACTIONS AGAINST TRANSIENTS OR NONRESIDENTS.

Foreign corporations with statutory agents in different counties. — Venue that is
proper for one foreign corporation defendant with a statutory agent cannot establish
venue for another foreign corporation defendant where the other foreign corporation
maintains a statutory agent in a separate county. Bank of America v. Apache
Corporation, 2008-NMCA-054, 144 N.M. 123, 184 P.3d 435, cert. denied, 2008-
NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Foreign corporation and New Mexico corporation with statutory agents in
different counties. — Venue that is proper for one foreign corporation defendant with a
statutory agent may establish venue for a New Mexico corporation defendant even if the
New Mexico corporation maintains a statutory agent and a principal place of business in
another county. Bank of America v. Apache Corporation, 2008-NMCA-054, 144 N.M.
123, 184 P.3d 435, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Venue for a resident defendant is proper in the county where a defendant foreign
corporation’s statutory agent resides. Gardiner v. Galles Chevrolet Company, 2007-
NMSC-052, 142 N.M. 544, 168 P.3d 116.

Appointment of statutory agents. — Pursuant to 53-17-9 NMSA 1978, a foreign
corporation may appoint a non-resident statutory agent which gives the corporation the
benefit offered by the venue exceptions of Subsection F. Cooper v. Chevron U.S.A.,
Inc., 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.

Foreign corporation with statutory agent. — Subsection F of this section limits the
proper venue in an action against a foreign corporation with a statutory agent. Baker v.
BP American Prod. Co., 2005-NMSC-011, 137 N.M. 334, 110 P.3d 1071.

Multiple non-resident defendants. — In actions with multiple defendants, venue for a
non-resident defendant cannot determine venue for a foreign corporation with a
statutory agent. Baker v. BP America Prod. Co., 2005-NMSC-011, 137 N.M. 334, 110
P.3d 1071.

Foreign corporations are nonresidents. — Under the plain and unambiguous
language of this section, foreign corporations are considered nonresidents of this state
for the purpose of venue. Thus, suits against such corporations fall under the terms of
Subsection F, but suits by such corporations are governed by the provisions of
Subsection A. Aetna Fin. Co. v. Gutierrez, 1981-NMSC-090, 96 N.M. 538, 632 P.2d
1176, overruled on other grounds by Cooper v. Chevron USA, 2002-NMSC-020, 132
N.M. 382, 49 P.3d 61.

Wrongful death action between nonresidents. — An action for wrongful death, due
to an automobile accident, being transitory in character, may be brought anywhere in
the state when both plaintiff and defendant are nonresidents. State ex rel. Appelby v.
District Court, 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.

Action upon contract against nonresident. — Although this section provides that suit
can be brought where a contract was made or to be performed, the section also
provides that a suit can be brought against a nonresident in any county of the state.
Valley Country Club, Inc. v. Mender, 1958-NMSC-042, 64 N.M. 59, 323 P.2d 1099.

When venue is based on where a contract is to be performed, the court should
determine whether the venue chosen by the plaintiff is one where a primary or principal
activity of the contract is to take place. Team Bank v. Meridian Oil, Inc., 1994-NMSC-
083, 118 N.M. 147, 879 P.2d 779.

                    VII.   ACTIONS AGAINST STATE OFFICERS.
The legislature has expressly localized suits against state officers by virtue of
this section. Tudesque v. N.M. State Bd. of Barber Exam'rs, 1958-NMSC-128, 65 N.M.
42, 331 P.2d 1104.

Localized suits against state officers. — The legislature intended that actions against
state officers be brought in Santa Fe county and not elsewhere. State ex rel. State Hwy.
Comm'n v. Quesenberry, 1964-NMSC-043, 74 N.M. 30, 390 P.2d 273.

The words "state officers" as used in Subsection G of this section does not mean
merely the executive department heads elected by the people and as recognized under
the constitution, but includes incumbents of offices created by the legislature. Pollack v.
Montoya, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336; see also Lacy v. Silva, 1972-
NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.

Persons and bodies deemed state officers. — The bureau of revenue (now taxation
and revenue department) is a state officer since it is charged with the administration and
enforcement of the revenue laws through its commissioner of revenue (now secretary of
taxation and revenue). State ex rel. Bureau of Revenue v. MacPherson, 1968-NMSC-
106, 79 N.M. 272, 442 P.2d 584, overruled on other grounds by N.M. Livestock Bd. v.
Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

The board of barber examiners (now board of barbers and cosmetologists), with
statutory situs in Santa Fe, has been clothed by the legislature with powers and duties
of statewide scope, the exercise of which involves some portion of the governmental
power. Hence the board itself, as well as its component members, is a state officer as
such within the meaning of Subsection G of this section. Tudesque v. N.M. State Bd. of
Barber Exam'rs, 1958-NMSC-128, 65 N.M. 42, 331 P.2d 1104.

The commissioner of revenue (now secretary of taxation and revenue) is a state officer.
State ex rel. Bureau of Revenue v. MacPherson, 1968-NMSC-106, 79 N.M. 272, 442
P.2d 584, overruled on other grounds by N.M. Livestock Bd. v. Dose, 1980-NMSC-022,
94 N.M. 68, 607 P.2d 606.

Sovereign power is clearly vested in the office of the commissioner of revenue (now
secretary of taxation and revenue) and this office is therefore a state office. Lacy v.
Silva, 1972-NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d
355.

A district director (now division director) of revenue is not autonomous and is not
independent, therefore, sovereign power has not been vested with the district director
either by the legislature or by the commissioner pursuant to legislative authority and
absent a vesting of sovereign power in the district director, he is not an "officer" within
the meaning of Subsection G of this section. Lacy v. Silva, 1972-NMCA-064, 84 N.M.
43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.
Chief of division of liquor control (now director of department of alcoholic beverage
control) is a state officer within terms of Subsection G of this section requiring civil
actions brought against state officers to be brought in the county where the office is
located. Pollack v. Montoya, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336.

State highway commissioners are state officers within the meaning of this statute.
Jones v. N.M. State Hwy. Dep't, 1979-NMSC-033, 92 N.M. 671, 593 P.2d 1074.

Section applicable to actions against state officers for acts committed while
purporting to act within scope of official authority or capacity. — Statutes which
prescribe venue for suits against state officers, for acts done by virtue of their office,
control suits for acts done by them while purporting to act within the scope of authority
or official capacity. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677,
overruled on other grounds by N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M.
68, 607 P.2d 606.

Acts committed while purporting to act within scope of official authority or
capacity. — Where it was not asserted that alleged wrongful acts were committed by
defendants while purporting to act within the scope of their official authority or capacity,
the provisions of this section were not applicable. Allen v. McClellan, 1967-NMSC-114,
77 N.M. 801, 427 P.2d 677, overruled on other grounds by N.M. Livestock Bd. v. Dose,
1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

Where plaintiff's claim was that the conduct of the district director (now division director)
of revenue which gave rise to the filing of the criminal complaint was entirely outside the
scope of his employment with the state of New Mexico and plaintiff sought damages
only against the district director and on the basis of acts outside the scope of his
employment, this section was not applicable. Lacy v. Silva, 1972-NMCA-064, 84 N.M.
43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.

Injunctive proceedings against state officers. — Statutes which prescribe venue for
suits against state officers, for acts done by virtue of their office, control suits for acts
done by them while purporting to act within the scope of authority or official capacity.
These same rules apply to suits for injunction against such officers. Allen v. McClellan,
1967-NMSC-114, 77 N.M. 801, 427 P.2d 677, overruled on other grounds by N.M.
Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

Mandamus proceedings against state officers. — This section cannot be considered
as a means of ousting a court of jurisdiction once that jurisdiction has attached; and this
is particularly true where the state commission originally sought the aid of the court in
another county by seeking relief, such as, in the condemnation of property. Therefore,
Subsection G is not controlling, and it was within the jurisdiction of the trial court to
issue, in the primary case, its writ of mandamus against appellant, which had initially
applied to that same court for relief. State ex rel. State Hwy. Comm'n v. Quesenberry,
1964-NMSC-043, 74 N.M. 30, 390 P.2d 273.
Section inapplicable to action for release of funds held by department. — An
action for the release of funds held by the human services department [health care
authority department] pursuant to a court order is not a "suit against a state officer" but
is an exercise by a court of its continuing jurisdiction; thus, this section is inapplicable. In
re Estate of Guerra, 1981-NMCA-063, 96 N.M. 608, 633 P.2d 716.

Section requires only venue be proper when action is commenced. Valdez v.
Ballenger, 1978-NMSC-055, 91 N.M. 785, 581 P.2d 1280.

Suits against state officers may be brought in Santa Fe county, where the capital is
located. Jacobs v. Stratton, 1980-NMSC-091, 94 N.M. 665, 615 P.2d 982.

Subsection G is not jurisdictional; prior cases so holding are overruled. N.M.
Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

Venue should not be equated with jurisdiction in suits against state, its officers or
employees. N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.

Applicability of Subsection G to state educational institutions. — This section, not
41-4-18 NMSA 1978, the venue provision of the Tort Claims Act, applies to all tort
actions brought against state educational institutions or employees thereof. Clothier v.
Lopez, 1985-NMSC-088, 103 N.M. 593, 711 P.2d 870.

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

For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M.L. Rev.
53 (1981).

For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97
(1982).

For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev.
251 (1983).

For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 77 Am. Jur. 2d Venue §§ 1 to 8.

Liability or indemnity insurance as regards accident as "accident insurance" within
meaning of statute as to venue, 77 A.L.R. 1416.

Constitutionality of statute which permits action against trucking or bus company for
injury to person or property to be brought in any county through or into which the route
passes, 81 A.L.R. 777.
Aeroplane passenger, venue of action for injury to, 83 A.L.R. 376, 99 A.L.R. 173, 155
A.L.R. 1026.

Venue of actions for declaratory judgments, 87 A.L.R. 1245.

Plaintiff's bona fide belief in cause of action against defendant whose presence in action
is necessary to justify venue as against another defendant, as sustaining venue against
latter notwithstanding failure to establish cause of action or dismissal of action, against
former, 93 A.L.R. 949.

Growing crops, venue of action for damages to, 103 A.L.R. 374.

Mortgages securing same debt or portions thereof, upon real property in different
counties, right to maintain single suit to foreclose, 110 A.L.R. 1477.

Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167.

Joining cause of action or prayer for personal relief as affecting venue of action relating
to real property, 120 A.L.R. 790.

Fraud in the sale of real property, location of land as governing venue of action for
damages for, 163 A.L.R. 1312.

Timber contract, venue in action arising out of, after delay in performance, 164 A.L.R.
465.

Presumption or inference as to place of forgery, arising from unexplained possession or
uttering of forged paper, 164 A.L.R. 649.

Venue of action involving real estate situated in two or more counties or districts, 169
A.L.R. 1245.

Designation of place of business of corporation papers, conclusiveness of, as regards
venue, 175 A.L.R. 1092.

Lien as estate or interest in land within venue statute, 2 A.L.R.2d 1261.

Nuisance, suit to enjoin, 7 A.L.R.2d 481.

Remedy and procedure to avoid release or satisfaction of judgment, 9 A.L.R.2d 553.

Effect of nonsuit, dismissal or discontinuance of action on previous orders, 11 A.L.R.2d
1407.

Relationship between "residence" and "domicil" under venue statutes, 12 A.L.R.2d 757.
Personal property: what is an action for damages to personal property within venue
statute, 29 A.L.R.2d 1270.

Applicability, to annulment actions, of residence requirements of divorce statutes, 32
A.L.R.2d 734.

Partnership dissolution, settlement, or accounting, 33 A.L.R.2d 914.

Wrongful death action, 36 A.L.R.2d 1146.

Fraudulent conveyance, setting aside of, 37 A.L.R.2d 568.

Nonresident motorist served constructively under statute, venue of action against, 38
A.L.R.2d 1198.

Divorce: venue of divorce action in particular county as dependent on residence or
domicile for a specified length of time, 54 A.L.R.2d 898.

Replevin, or similar possessory action, proper county for bringing, 60 A.L.R.2d 487.

Specific performance of contract pertaining to real property, action for, 63 A.L.R.2d 456.

Timber: action for cutting, destruction, or damage of standing timber or trees, 65
A.L.R.2d 1268.

Airplane accident: proper forum and right to maintain action for accident causing death
over or in high seas, 66 A.L.R.2d 1002.

Intervention by other stockholders in stockholder's derivative action, 69 A.L.R.2d 562.

Slander action, 70 A.L.R.2d 1340.

Contribution or indemnity claim arising from payment of judgment as claim in motor
vehicle accident case, 84 A.L.R.2d 994.

Executor: place of personal representative's appointment as venue of action against him
in his official capacity, 93 A.L.R.2d 1199.

Real estate: venue of damage action for breach of real estate sales contract, 8 A.L.R.3d
489.

Venue of civil libel action against newspaper or periodical, 15 A.L.R.3d 1249.

Venue in action for malicious prosecution, 12 A.L.R.4th 1278.
Validity of contractual provision limiting place or court in which action may be brought,
31 A.L.R.4th 404.

Place where claim or cause of action "arose" under state venue statute, 53 A.L.R.4th
1104.

Place where corporation is doing business for purposes of state venue statute, 42
A.L.R.5th 221.

Venue of wrongful death action, 58 A.L.R.5th 535.

Construction and application of venue provisions of Miller Act (40 USCS § 270b (b)),
140 A.L.R. Fed. 615.

92 C.J.S. Venue § 5.