N.M. Stat. § 44-2-11 (2026)

No other pleading or written allegation is allowed than the writ and answer. They
shall be construed and amended in the same manner as pleadings in a civil action, and
the issues thereby joined shall be tried and further proceedings had in the same manner
as in a civil action.

History: Laws 1884, ch. 1, § 45; C.L. 1884, § 2000; C.L. 1897, § 2768; Code 1915, §
3420; C.S. 1929, § 86-110; 1941 Comp., § 26-111; 1953 Comp., § 22-12-11.

                                    ANNOTATIONS

Cross references. — For contents of the writ, see 44-2-6 NMSA 1978.

For construction of pleadings, see Rule 1-008F NMRA.
For amended and supplemental pleadings, see Rule 1-015 NMRA.

For the rules regulating trials, see Rules 1-038 to 1-053 NMRA.

Writ and answer only mandamus pleadings considered before supreme court. —
On a petition for writ of mandamus under original jurisdiction of the supreme court, the
pleadings to be considered are the petitioner's alternative writ of mandamus and the
answer by the respondent. State ex rel. Heron v. Kool, 1943-NMSC-027, 47 N.M. 218,
140 P.2d 737.

Case must be tried on writ and answer. — The complaint itself drops out of the
picture and the writ must contain allegations of all facts necessary to authorize the relief
sought. Furthermore, allegations in the writ should be made as in ordinary actions.
Hence, the usual rules applicable in testing the sufficiency of a complaint in an ordinary
civil action apply. The facts should be pleaded with the same certainty, neither more nor
less. Laumbach v. Board of Cnty. Comm'rs, 1955-NMSC-096, 60 N.M. 226, 290 P.2d
1067.

Pleadings are to be construed as in ordinary civil actions. State ex rel. Garcia v.
Board of Comm'rs, 1916-NMSC-030, 21 N.M. 632, 157 P. 656.

Writ must allege facts necessary to authorize relief sought. Alfred v. Anderson,
1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.

Fact allegations in application form no part of writ. — Allegations of fact in an
application for alternative writ of mandamus form no part of the writ and ordinarily
cannot be so considered in determining the legal sufficiency of the writ. Mora Cnty. Bd.
of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943.

Unless respondent answers allegations as though they were in writ. — Where
respondent answers the allegations in the application, treating them as though
contained in the alternative writ, they should be treated as supplementing those
contained in the writ. Allegations of fact should be pleaded with the same certainty as in
ordinary actions. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M.
576, 249 P. 242.

Time extension and leave to amend freely given when necessary. — While office of
mandamus is to afford a speedy remedy and to avoid delay, this does not mean that the
court is without power to extend the time within which a respondent may answer, or that
the answer may not be amended, and leave to amend should be freely given when
justice demands. State ex rel. Fitzhugh v. City Council of Hot Springs, 1952-NMSC-022,
56 N.M. 118, 241 P.2d 100.

Legal objections raised by answer only. — The issues in mandamus are created
solely by and are limited to the allegations of the writ and the answer thereto. Legal
objections must be raised by the answer and, where the defense of abandonment of the
suit after judgment was not in the pleadings, it could not have been considered or
passed upon by the trial court. State ex rel. State Hwy. Comm'n v. Quesenberry, 1963-
NMSC-113, 72 N.M. 291, 383 P.2d 255.

Issues must be raised by answer. — In mandamus to compel levy of tax to satisfy
judgment on certificates of indebtedness, issues, requiring allegations of fact pleaded in
bar should have been raised by answer and not by demurrer (now motion) to alternative
writ. State ex rel. Chesher v. Beall, 1937-NMSC-079, 41 N.M. 652, 73 P.2d 329.

Court may construe pleading raising legal questions as answer. — Though a
motion to dismiss is not an appropriate pleading in mandamus, the court may construe
a pleading which raises legal questions as an answer, admitting the facts stated therein
and invoking the court's application of the law thereto. State ex rel. Fitzhugh v. City
Council of Hot Springs, 1952-NMSC-022, 56 N.M. 118, 241 P.2d 100.

With exception of pleadings mandamus tried as other civil actions. — Mandamus
is a civil action, and, with the exception of the pleadings, is tried and proceeded with in
the same manner as other civil actions. The writ and the return constitute all the
pleadings which shall be allowed. If the writ does not state sufficient grounds to
authorize it, the respondent might demur (now move) thereto, and thus raise a question
of law, which, if overruled by the court, would be such a final judgment as would
authorize him to appeal. Eldodt v. Territory ex rel. Vaughn, 1900-NMSC-015, 10 N.M.
141, 61 P. 105; Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170; Perez
v. Barber, 1893-NMSC-021, 7 N.M. 223, 34 P. 190.

Appeal dismissed where required procedures in mandamus proceedings not
followed. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.

Jury trial not necessary preliminary to valid judgment. — Determination of the facts
by a jury in a mandamus case is not a necessary preliminary to a valid judgment.
Delgado v. Chavez, 1891-NMSC-012, 5 N.M. 646, 25 P. 948, aff'd, 140 U.S. 586, 11 S.
Ct. 874, 35 L. Ed. 578 (1891); Territory ex rel. Lewis v. Board of Cnty. Comm'rs, 1888-
NMSC-015, 5 N.M. (Gild., E.W.S. ed.) 1, 16 P. 855.

Inconsistencies in mandamus and quo warranto proceedings grounds for
quashing. — The denial in proceedings by mandamus that the plaintiff therein was a de
facto sheriff, while maintaining, as he must, in a collateral proceeding by way of quo
warranto, that the same person was de facto in charge of the office, was so inconsistent
that the return containing the denial could have been quashed for this reason alone.
Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170.

Amicus curiae cannot raise constitutionality where party fails to. — An amicus
curiae is not a party and cannot assume the functions of a party; he must accept the
case before the court with the issues made by the parties, and if the constitutionality of
a statute is not raised by a party claiming to be adversely affected, the amicus curiae
cannot do so. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576,
249 P. 242.

Law reviews. — For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155
(1974).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus § 413.

55 C.J.S. Mandamus § 257.