N.M. Stat. § 39-3-4 (2026)

A. In any civil action or special statutory proceeding in the district court, when the
district judge makes an interlocutory order or decision which does not practically
dispose of the merits of the action and he believes the order or decision involves a
controlling question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order or decision may materially
advance the ultimate termination of the litigation, he shall so state in writing in the order
or decision.

     B. The supreme court or court of appeals has jurisdiction over an appeal from such
an interlocutory order or decision, as appellate jurisdiction may be vested in those
courts. Within fifteen days after entry of the order or decision, any party aggrieved may
file with the clerk of the supreme court or court of appeals an application for an order
allowing an appeal, accompanied by a copy of the interlocutory order or decision.
    C. Application under this section for an order allowing appeal does not stay
proceedings in the district court unless so ordered by the district judge or a judge or
justice of the court to which application is made.

History: 1953 Comp., § 21-10-3, enacted by Laws 1971, ch. 40, § 1; 1999, ch. 80, § 1.

                                      ANNOTATIONS

Cross references. — For appellate jurisdiction of supreme court, see N.M. Const., art.
VI, § 2; 39-3-2, 39-3-3 NMSA 1978.

For jurisdiction of court of appeals, see N.M. Const., art. VI, § 29.

For Uniform Certification of Questions of Law Act, see Chapter 39, Article 7 NMSA
1978.

For appellate jurisdiction of court of appeals, see 34-5-8 NMSA 1978.

For when appeals taken, see Rules 12-201 and 12-203 NMRA.

For procedure on certiorari to review decision of court of appeals, see Rule 12-502
NMRA.

For procedure on certification from court of appeals, see Rule 12-606 NMRA.

The 1999 amendment, effective July 1, 1999, in Subsection B, substituted "fifteen
days" for "ten days" in the second sentence, and deleted the former last sentence,
which read "If an application has not been acted upon within twenty days, it shall be
deemed denied", and made a minor stylistic change.

Final order as to one plaintiff. — Where both plaintiffs were parties to counts I through
III of the complaint; plaintiff Bigbyte was not a party to count IV; the parties dismissed
count III; the district court granted summary judgment against plaintiffs on counts I and
II; count IV remained pending before the district court; and the district court’s summary
judgment provided that the summary judgment did not practically dispose of the merits
of the case, but did finally dispose of the claims raised in counts I and II; that the
summary judgment involved a controlling question of law as to which there was a
substantial ground for differences of opinion, and "an immediate appeal from the
summary judgment may materially advance the ultimate termination of litigation and
there is no just cause for delay"; the summary judgment was a final judgment as to
Bigbyte because all of Bigbyte’s claims had been disposed of and the summary
judgment did not contain express language stating that the summary judgment was not
a final order as to Bigbyte. Santa Fe Pacific Trust, Inc. v. City of Albuquerque, 2012-
NMSC-028, 285 P.3d 595.
Appeal of barred issues. — An application for interlocutory appeal will not be granted
where the controlling questions of law advanced by the appellant relate to issues that
the district court, in its partial judgment, barred as untimely raised. Ellis v. Cigna Prop. &
Cas. Cos., 2007-NMCA-123, 142 N.M. 497, 167 P.3d 945, cert. denied, 2007-
NMCERT-009, 142 N.M. 715, 169 P.3d 408.

Jurisdiction over interlocutory appeal. — Court of appeals had jurisdiction to
entertain petitioner's application for interlocutory appeal, even though the application
was granted more than 20 days after it was filed. Lovelace Med. Ctr. v. Mendez, 1991-
NMSC-002, 111 N.M. 336, 805 P.2d 603.

The legislature did not intend the 20-day requirement in this section to be a limitation on
the appellate courts' jurisdiction, conferred by that section, over interlocutory appeals.
The requirement, in other words, was intended to assist the courts with the
management of their cases in the absence of some other provision, not to limit the
courts' jurisdiction. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, 111 N.M. 336, 805
P.2d 603.

Allowance of interlocutory appeal is discretionary with the appellate court. State v.
Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299,
621 P.2d 516.

Requirements of interlocutory appeals. — Interlocutory appeals require the existence
of a substantial difference of opinion on a controlling issue of law. Starko, Inc., et al. v.
Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert denied,
2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.

Allowance of appeal not subject to challenge. — The acceptance of an appeal by
the court of appeals when there has been compliance with Subsection A of this section,
is not subject to challenge. Salazar v. St. Vincent Hosp., 1980-NMCA-095, 96 N.M. 409,
631 P.2d 315, aff'd in part, rev'd in part, 1980-NMSC-124, 95 N.M. 147, 619 P.2d 823.

When permission to appeal from interlocutory order is denied, the appellate court
never assumes jurisdiction of the matter; consequently, jurisdiction remains in the trial
court and there is nothing to prevent the trial court from proceeding to try the pending
case. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied,
95 N.M. 299, 621 P.2d 516.

Extension of time for interlocutory appeal. — Absent statutory authority or supreme
court rule, appellate courts may not extend the time for an interlocutory appeal, even to
relieve against mistake, inadvertence or accident. However, in appropriate
circumstances, the district court may reconsider the issue and enter a second
interlocutory order from which application for a timely interlocutory appeal may be
made. Candelaria v. Middle Rio Grande Conservancy Dist., 1988-NMCA-065, 107 N.M.
579, 761 P.2d 457.
Section gives jurisdiction to appellate court to deny motion for summary
judgment. — This section, along with 34-5-8 NMSA 1978, gives court of appeals
jurisdiction over interlocutory appeal from an order or decision which does not
practically dispose of the merits of the case. Therefore court could hear appeal of
defendant whose motion for summary judgment in medical malpractice suit was denied.
Vaca v. Whitaker, 1974-NMCA-011, 86 N.M. 79, 519 P.2d 315.

Section does not give jurisdiction to appellate court to grant motion to dismiss.
— Where an order denying defendant's motion to dismiss was a part of the main action,
no final judgment or interlocutory order which practically disposed of the merits having
been entered, and the order did not contain the requisite finding on which to base an
application for an interlocutory appeal under this section, the argument that a decision
whether to make the requisite finding should only have been made by the judge who
held the motion hearing and could not have properly been made by a different judge
was not an issue in the appeal because the order denying the motion to dismiss was not
an appealable order. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540
P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249.

Order disqualifying counsel. — Although an order disqualifying counsel may not be
properly appealed under the collateral order doctrine, an appellate court may hear the
issue if it is certified by the trial court for interlocutory appeal. Sanders v. Rosenberg,
1995-NMCA-039, 119 N.M. 811, 896 P.2d 491, rev'd on other grounds, 1997-NMSC-
002, 122 N.M. 692, 930 P.2d 1144.

Denial of motion for protective order held not appealable. — Doctors' appeal from
order denying motion for protective order, which sought to have court order a stay in
taking of deposition of patient seeking to perpetuate testimony until such time as court
first determined competency of patient as witness, was not an appealable final judgment
and was not appealable as interlocutory order where order did not comply with this
section. In re Bartow, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387.

Appeals from children's court. — The court of appeals has jurisdiction over appeals
from interlocutory orders from the children's court pursuant to this section, as the
children's court is a division of the district court. In re Doe, 1973-NMCA-141, 85 N.M.
691, 516 P.2d 201.

This section is not applicable to appeals from judgments of the children's court where
the child was alleged to be delinquent or in need of supervision. Health & Social Servs.
Dep't v. Doe, 1978-NMCA-045, 91 N.M. 675, 579 P.2d 801.

Remand of zoning decision not final. — The district court's remand of a zoning
matter to the city council was not a final, appealable order; before a party would have
the right to challenge that order on appeal to the court of appeals, it would have to await
the council decision on remand, obtain review of the council decision in district court,
and then appeal the district court judgment. High Ridge Hinkle Joint Venture v. City of
Albuquerque, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, cert. denied, 119 N.M. 20,
888 P.2d 46, aff'd, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189, rev'd on other
grounds, 1998-NMSC-050, 126 N.M. 413, 970 P.2d 599.

Order not final appealable order. — Where court order contained language required
to certify an order for interlocutory appeal, and order also contained language certifying
an order for immediate appeal as of right, the order is not a final appealable order. Sys.
Tech., Inc. v. Hall, 2004-NMCA-130, 136 N.M.548 , 102 P.3d 107.

Law reviews. — For comment, "New Mexico's Analogue to 28 U.S.C. § 1292(b):
Interlocutory Appeals Come to the State Courts," see 2 N.M. L. Rev. 113 (1972).

For article, "Judicial Adoption of Comparative Fault in New Mexico: The Time Is at
Hand," see 10 N.M.L. Rev. 3 (1979-80).

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Appellate Review § 84 et
seq.; 5 Am. Jur. 2d Appellate Review § 967 et seq.

Appealability of interlocutory orders in proceedings in bankruptcy, 33 A.L.R.2d 1366.

Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact
that order was separately appealable, 79 A.L.R.2d 1352.

Reviewability of order denying motion for summary judgment, 15 A.L.R.3d 899.

Appealability of order staying, or refusing to stay, action because of pendency of
another action, 18 A.L.R.3d 400.

Appealability of state criminal court order requiring witness other than accused to
undergo psychiatric examination, 17 A.L.R.4th 867.

Appealability of interlocutory or pendente lite order for temporary child custody, 82
A.L.R.5th 389.

4 C.J.S. Appeal and Error §§ 81, 298, 397; 5 C.J.S. Appeal and Error § 716.