N.M. Stat. » Chapter 44 — Miscellaneous Civil Law Matters
New Mexico Statutes

N.M. Stat. § 44-2-9 (2026)

[Answer to writ.]

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On the return day of the alternative writ, or such further day as the court allows, the party on whom the writ is served may show cause by answer, made in the same manner as an answer to a complaint in civil action.

History: Laws 1884, ch. 1, § 43; C.L. 1884, § 1998; C.L. 1897, § 2766; Code 1915, § 3418; C.S. 1929, § 86-108; 1941 Comp., § 26-109; 1953 Comp., § 22-12-9.

ANNOTATIONS

Cross references. — For answers generally, see Rules 1-008 and 1-012 NMRA.

Where answer requests court to invoke judgment respondent submits to court. — In a mandamus proceeding to compel board of county commissioners to canvass election returns of a certain precinct where respondents requested the court to inspect the evidence offered with their answer, and bring into court all the returns, certificates, poll books and ballot box, and invoke its judgment as to the legal sufficiency to justify the action of the board, such action on their part is a submission to the court, and they cannot insist on a jury trial nor will they be heard to object that there is no evidence, upon the issue of facts raised by their answer, to support the judgment of the court below in awarding a peremptory writ. Territory ex rel. Lewis v. Board of County Comm'rs, 1888-NMSC-015, 5 N.M. (Gild., E.W.S. ed.) 1, 16 P. 855.

Time to answer may be extended and amendments allowed. — 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.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus §§ 432 to 437. Absence of appropriation or funds as defense to mandamus to compel payment of salary of public officer or employee, 5 A.L.R. 579.

Unconstitutionality of statute as defense to mandamus proceeding, 30 A.L.R. 378, 129 A.L.R. 941.

55 C.J.S. Mandamus §§ 272 to 274.

Notes of Decisions
Cited in 7 cases, 1988–2015 · leading case: Hoyt v. State, 2015-NMCA-108, 359 P.3d 147.
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Hoyt v. State, 2015-NMCA-108, 359 P.3d 147. · cites it 5× “See NMSA 1978, § 44-2-9 (1884) (providing that a defendant may show cause 2 by answer to an alternative writ).”
Mimbres Valley Irrigation Co. v. Salopek, 2006-NMCA-093, 140 P.3d 1117. · cites it 2× “” Section 44-2-9. Thus, the alternative writ serves the same function as a complaint in a civil action and the answer to the writ serves as the answer.”
Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-023, 954 P.2d 763. · cites it 2× “NMSA 1978, § 44-2-9 (1884). In determining the legal sufficiency of a writ, the court considers only the allegations in the writ and the answer.”
Matter of Grand Jury Sandoval Cnty., 750 P.2d 464 (N.M. Ct. App. 1988). · cites it 2× “NMSA 1978, § 44-2-9. Petitioner filed an application for issuance of the writ; however, there is neither an alternative writ nor an answer in the record before us.”
Martinez v. State, 796 P.2d 250 (N.M. Ct. App. 1990). “This would afford the proper respondent adequate notice, because the respondent answers the writ, see §§ 44-2-9, -11, not the petition itself. Final judgments in mandamus matters may be reviewed by appeal.”
Martinez v. State, 796 P.2d 250 (N.M. Ct. App. 1990). “This would afford the proper respondent adequate notice, because the respondent answers the writ, see §§ 44-2-9, -11, not the petition itself. Final judgments in mandamus matters may be reviewed by appeal.”
Kerpan v. Sandoval Cnty. Dist. Attorney's Off., 750 P.2d 464 (N.M. Ct. App. 1988). · cites it 2× “NMSA 1978, § 44-2-9. Petitioner filed an application for issuance of the writ; however, there is neither an alternative writ nor an answer in the record before us.”
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