N.M. Stat. » Chapter 39 — Judgments, Costs, Appeals
New Mexico Statutes

N.M. Stat. § 39-3-23 (2026)

Automatic stay

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When the appellant or plaintiff in error is the state, a county or a municipal corporation, the taking of an appeal or suing out of a writ of error operates to stay the execution of the judgment, order or decision of the district court without bond. History: Laws 1917, ch. 43, § 18; C.S. 1929, § 105-2514; 1953 Comp., § 21-10-20; Laws 1966, ch. 28, § 51.

ANNOTATIONS

Compiler's notes. — Laws 1966, ch. 28, § 51, recompiled this section. It had been omitted by the compilers of the 1941 Compilation as superseded by the Supreme Court Rules.

Affidavit that appellant is "county-municipal hospital" insufficient. — Where a hospital seeks a stay of execution on a judgment, without bond, because an appeal has been taken, and the motion relies upon an affidavit by the hospital administrator which states that the movant is a "county-municipal hospital," the affidavit is deficient where it fails to state either that a city-county organization operated the hospital or that it was not leased to some other entity. Robinson v. Mem. Gen. Hosp., 1982-NMCA-167, 99 N.M. 60, 653 P.2d 891.

Filing appeal by state or its political subdivision triggers the automatic stay provisions of this section and Rule 1-062. City of Sunland Park v. N.M. Pub. Regulation Comm'n, 2004-NMCA-024, 135 N.M. 143, 85 P.3d 267, cert. denied, 2004-NMCERT- 002, 135 N.M. 169, 86 P.3d 47.

Stay generally considered prospective. — Under the plain language of this section, Rule 1-062 and the prevailing common law, a stay is generally prospective rather than retroactive, unless otherwise specified. City of Sunland Park v. N.M. Pub. Regulation Comm'n, 2004-NMCA-024, 135 N.M. 143, 85 P.3d 267, cert. denied, 2004-NMCERT- 002, 135 N.M. 169, 86 P.3d 47.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality, construction and application of statute as to effect of taking appeal, or staying execution, on right to redeem for execution or judicial sale, 44 A.L.R.4th 1229.

4 C.J.S. Appeal & Error § 413.

Notes of Decisions
Cited in 7 cases, 1982–2003 · leading case: City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 85 P.3d 267.
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City of Sunland Park v. New Mexico Pub. Reg. Comm'n, 2004-NMCA-024, 85 P.3d 267. · cites it 10× “Rule 1-062(E) NMRA 2003; NMSA 1978, § 39-3-23 (1966). On July 24, the City filed notice with the PRC that it intended to increase rates.”
City of Sunland Park v. Santa Teresa Servs. Co., 2003-NMCA-106, 75 P.3d 843. · cites it 2× “NMSA 1978, § 39-3-23 (1966), Rule 1-062(E) NMRA 2003.”
Segal v. Goodman, 851 P.2d 471 (N.M. 1993). · cites it 2× “For example, NMSA 1978, Section 39-3-23 (Repl.Pamp.1991), declares that when the appellant is the state, a county, or a municipal corporation, the taking of an appeal operates to stay execution of the judgment without a bond.”
City of Sunland Park v. Paseo Del Norte Ltd. P'ship, 1999-NMCA-124, 990 P.2d 1286. · cites it 2× “See NMSA 1978, § 39-3-23 (1966) (automatic stay granted when state appeals); Rule 1-062(E) NMRA 1999 (same).”
Farms v. Carlsbad Riverside Terrace Apts., Inc., 690 P.2d 1044 (N.M. Ct. App. 1984). · cites it 2× “NMSA 1978, § 39-3-23. See City of Albuquerque v.”
City of Albuquerque v. Jackson, 684 P.2d 543 (N.M. Ct. App. 1984). · cites it 2× “The trial court erroneously ruled, that at the time Jackson erected his sign, the ordinance had been declared unconstitutional and therefore was of no force or effect.”
Robinson v. Mem'l Gen. Hosp., 653 P.2d 891 (N.M. Ct. App. 1982). “The motion relied on § 39-3-23, N.M.S.A.1978, which provides for a stay of the judgment, without bond, when the appeal is by “the state, a county or a municipal corporation * * See also R.”
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