Actions additional which survive.

3087. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the March 31.

same.

L. 1884. chap. 5, § 1;

Actions pending shall not abate; ex

§ 3088. No action pending in any court shall abate by the death of either, or both, the parties thereto, except an action ceptions. for libel, slander, malicious prosecution, assault, or assault and battery, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant.

§ 3089. Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers as a personal representative cease, if the right of action survives to or against the remaining parties, the action may proceed, the death of the party or the cessation of his powers being stated on the record.

Id. § 2.

Procedure if either party dies.

Id. § 3.

Procedure in dis

§ 3090. Where one of several plaintiffs or defendants dies, cretion of court. or his powers as a personal representative cease, if the cause of action do not admit of survivorship, and the court is of opinion that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties, but the judgment shall not prejudice any who were not parties at the time of the trial.

Id. § 4.

Revivor death

§ 3091. When one of the parties to an action dies, or his powers as a personal representative cease before the judg. when ment, if the right of action survive in favor of or against his representative or successor, the action may be revived and proceed in their names.

§ 3092. The revivor shall be by a conditional order of the court, if made in term, or by a judge thereof if in vacation, that the action be revived in the names of the representatives or successor of the party who died, or whose powers ceased, and proceed in favor of or against them.

§ 3093. The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died, or whose powers cease, suggesting his death, or the cessation of his powers, which, with the names and

Id. § 5.

after

of party,

Revivor, how to be made.

Id. § 6.

Order, how may be made.

C. 5, L. 84, § 7: capacities of his representatives or successor, shall be stated in the order.

March 31.

3094. If the order is made by consent of the parties. the action shall forthwith stand revived; and if not made by consent, the order shall be served in the same manner, and returned within the same time as a summons upon the party adverse to the one making the motion, and if sufficient cause be not shown against the revivor, the action shall stand revived.

§ 3095. When the plaintiff shall make an affidavit that the representatives of the defendant, or any of them, in whose name the action may be ordered to be revived, are non-residents of the territory, or have left the same to avoid the service of the order, or so concealed themselves that the order cannot be served upon them, or that the names and residence of the heirs, or devisees of the person against whom the action may be ordered to be revived, or some of them are unknown to the affiant, a notice may be published for four consecutive weeks in some newspaper published in the county, notifying them to appear on a day therein named and show cause why the action should not be revived against them, and if sufficient cause be not shown to the contrary, the action shall stand revived.

§ 3096. Upon the death of the plaintiff in an action, it may be revived in the names of his representatives to whom his rights have passed; where his right has passed to his personal representatives the revivor shall be in his name: where it has passed to his heirs or devisees who could support the action if brought anew, the revivor may be in their names.

$3097. Upon the death of a defendant in an action, wherein the right of any part thereof survives again his personal representatives, the revivor shall be against him, and it may also be against the heirs or devisees of the defendant, or both, when the right of action or any part thereof survives against them.

§ 3098. Upon the death of a defendant in an action for the recovery of real property only, or which concerns only his rights or claims to such property, the action may be revived against his heirs or devisees, or both; and an order therefor may be forthwith made, in the manner directed in the preceding sections.

§ 3099. An order to revive an action against the representatives or successor of a defendant, shall not be made without the consent of such representative or successor, unless in one year from the time it could have been first made. § 3100. An order to revive an action in the names of the representatives or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his power have ceased in the meantime, the order of revivor on both sides may be made in the period limited in the last section.

§ 3101. When it appears to the court by affidavit that either party to an action has been dead, or where a party

sues, or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be revived in the names of his representatives or successor, without the consent of both parties, it shall order the action to be stricken from the docket.

C. 5. I. 84. § 15; March 31.

Stricken from docket after notice,

§ 3102. At any term of the court succeeding the death of the plaintiff, while the action remains on the docket, the de- when. fendant having given to the plaintiff's proper representative, in whose names the action might be revived, ten days' notice of the application therefor, may have an order to strike the action from the docket, and for costs against the estate of the plaintiff, unless the action is forthwith revived.

§ 3103. When, by the provisions of the preceding sec tions, an action stands revived, the trial thereof shall not be postponed by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had not death or cessation of powers taken place.

Id. § 16.

Trial not to be postponed, when.

Id. § 17.

Actions do not

§ 3104. No action shall abate by the transfer of any inter- abate. how. est therein during its pendency.

L. 1880, chap. 6. § 9; Feb. 12.

§ 3105. The party in whose favor any judgment, order or decree in any court may be returned, shall have execution therefor in conformity to the order, judgment, or decree.

Crenshaw vs. Delgado, vol. 1, page 376, N. M. Rep.

3106. The execution shall be against the goods, chattels and lands of the defendant against whom the judgment, order or decree shall be rendered: Provided. That executions from justices of the peace shall not go against lands.

In re Jaramillo, 45 Pac. Rep. 1110.

C. L. 1865, chap. 34. Sept. 22, 1846.

Levy, notice debtors.

Schedule sworn to.

Id. § 4.

§ 3107. When any execution shall be placed in the hands of any officer for collection, he shall call upon the defendant to for payment thereof, or to show him sufficient goods, chattels, effects and lands, whereof the same may be satisfied; and if the officer fail to find property sufficient to make the same he shall notify all persons who may be indebted to said defendant not to pay said defendant, but to appear before the court, out of which said execution issued, and make true answers, on oath, concerning his indebtedness, and the like proceedings shall be had in cases of garnishees, summoned in suits originating by attachments. If the officer shall not find sufficient goods, chattels, effects, lands or debts to satisfy the execution, he shall arrest the body of the defendant, and in default of payment, commit him to jail.

to be

Schedule, trial

upon.

Id. § 5.

Bond for property.

Id. § 6.

Officer liable.

Id. § 7.

Sales, how to be regulated.

Id. § 8.

Notice of sale. publication of.

§ 3108. Any defendant so committed to jail may, at the expiration of five days from the day of his commitment, be discharged upon rendering a schedule, under oath, of all his property, money and effects, and delivering the same to the sheriff of the county; the sheriff shall have power to administer the oath aforesaid to said defendant.

§ 3109. The truth of such schedule may be tried on the return of the execution before the tribunal which issued the same, and if it be found untrue the body of the defendant may be retaken and committed to jail to await his trial for perjury.

§ 3110. The person whose goods are taken on execution, may retain possession thereof until the day of sale, by giving bond in favor of the plaintiff with sufficient security to be approved by the officer in double the value of such property, conditioned for the delivery of the property to the officer at the time and place of sale, to be named in such condition, which bond shall be returned with the execution.

§ 3111. Upon the failure of the officer to return such bond, or in case of its insufficiency, the officer shall be subjected to the same liability as is provided in the case of similar bonds in suits commenced by attachment.

3112. No goods and chattels, or other personal effects taken by virtue of an execution, shall be sold until the officer having charge of the writ shall have given ten days' notice of the time and place of sale, and of the property to be sold, by at least three advertisements put up at public places in the county in which the sale is to be made.

§ 3113. That no lands, tenements, goods or chattels shall be sold by virtue of any execution or other process, including chattel or real estate mortgages, unless such sale be at public vendue, between the hours of nine in the morning and the setting of the sun of the same day, nor unless the time and place of holding such sale and full description of property to be sold shall have previously been published for four weeks preceding said sale in English or Spanish, as the officer conducting said sale in his judgment may deem will give the most extensive notice in the county in which said property is situate, or, if there be no newspaper printed in said county. then in the newspaper chosen as the official paper for said county, and also by posting six such notices printed or writ

ten or partly printed or written in six of the most public places in said county.

§ 3114. If any sheriff or other person shall sell any lands, tenements, goods or chattels by virtue of any process otherwise than in the manner aforesaid or without such previous notice, the sheriff or other person so offending shall for every offense, forfeit and pay the sum of fifty dollars with costs of suit in any district court in this territory, to be recovered by the person whose lands are sold.

C. 37, L. 95, § 1: Feb. 28.

Sheriff selling land without notice.

Penalty.

Id. § 2.

Publication

in

place of hand bills

§ 3114a. All legal process against non-residents, unknown or absent parties, notices of sales of real estate under allowed. foreclosure of mortgages or executions, trespass warnings, and other documents, the publication of which is now or may hereafter be required by law to be made by posting written or printed notices in public places, may be published instead of being posted up, in English and Spanish, in some newspaper published in the county, if there be one, if not, then in some newspaper published in some other county of the territory for the same length of time it may be required to be posted, and when so published it shall not be necessary to post such notices in public places: Provided, That the person who may have to pay for such publication shall have the right to designate the newspaper in which the same may be published: And provided, further, That no newspaper shall be allowed to charge more than the price now fixed by law reb. 21. to be charged for legal advertisements.

§ 3115. All notices of sale by sheriffs under execution, order or decree of any district court in this territory shall contain as briefly as possible the style or title of the cause in which said judgment, order or decree was obtained, the nature of the action, the date of the rendition of said judgment, or the making of said order or decree, the amount thereof, with interest to date of sale, and the description of the property to be sold, sufficient for the complete identification thereof, together with a statement of the date, hour and conditions of said sale.

§ 3116. All executions issued by justices of the peace shall be returnable in thirty days from their date.

C. 46, L. 91. § 1:

Notice shall contaiu. what.

C. 36. L. 1887, § 4:

Feb. 10.

Executions by jus

tices.

C. L. 1865. chap. 34, $11; Sept. 24, 1846. Executions, how returnable; sales under. :

Amended Laws of

§ 3117. All the executions taken out of said district courts shall be returned within sixty days from the date of the delivery thereof, to the sheriff or other officer, or person whose duty it is, or who may be designated to serve the same; and 1895, chap. 37. such sheriff, or other officer or person, may offer for sale, and sell at public auction, at such time and place as may be designated, any real estate taken by virtue of such execution, complying with the provisions of the law, providing for appraisements, and by giving public notice of the time and place of the sale, in the manner now provided by law. All personal property, taken by virtue of any execution, may be sold, as now provided by law. All executions may issue on application, and the service and return thereof shall be controlled by Jan. 2. Tr. the plaintiff or his agent.

§ 3118. No execution shall issue against any security on any promissory note, bond, bond for costs, appeal bond, or other obligation for the payment of money or property, until

L. 1874, chap. 15. §2:

Principal to be first exhausted.