The filing in the proper clerk's office of the petition, declaration, bill or affidavit, upon the filing of which process is authorized by law to be issued, with intent that process shall issue immediately thereupon, which intent shall be presumed, unless the contrary appear, shall be deemed a commencement of the action.

History: Laws 1880, ch. 5, § 8; C.L. 1884, § 1867; C.L. 1897, § 2920; Code 1915, § 3367; C.S. 1929, § 83-124; 1941 Comp., § 27-112; 1953 Comp., § 23-1-13.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For commencement of civil action, see Rule 1-003 NMRA.

For pleadings allowed, see Rule 1-007 NMRA.

Legislature lacks constitutional power to prescribe procedural rules, invalidating section. — Under the constitution, the legislature lacks the power to prescribe by statute rules of evidence and procedure; this section is procedural and, therefore, invalid; Rule 1-003 NMRA is controlling. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123.

Conditional suspension of statute. — Although usually the act of filing a complaint conditionally suspends the statute of limitations and it is not necessary to serve process before the expiration of the limitation period, the rule is not without qualification. Murphy v. Citizens Bank, 244 F.2d 511 (10th Cir. 1957).

Rejection of complaint by court clerk. — A court clerk lacks the discretion to reject pleadings for technical violations and a pleading improperly rejected by a court clerk will be considered filed when delivered to the clerk. Ennis v. KMart Corp., 2001-NMCA-068, 131 N.M. 32, 33 P.3d 22, cert. denied, 130 N.M. 722, 31 P.3d 380.

Section recognizes need for good faith in filing of actions and of due diligence in the issuance of process in order to toll the statute of limitations. Murphy v. Citizens Bank, 244 F.2d 511 (10th Cir. 1957).

Reasonable diligence is essential to effective suspension of statute of limitations. Murphy v. Citizens Bank, 244 F.2d 511 (10th Cir. 1957).

Plaintiff's suit dismissable for failure to prosecute with due diligence. — The statute of limitations is tolled by the timely filing of the complaint, but the trial court, in the exercise of its inherent power and in its discretion, independent of statute, may dismiss a case for failure to prosecute when it is satisfied that plaintiff has not applied due diligence in the prosecution of his suit. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123.

Standard is reasonable diligence. — Prieto v. Home Educ. Livelihood Program, 94 N.M. 738, 616 P.2d 1123 (Ct. App. 1980), should not be interpreted as requiring a showing of intentional delay. Rather, the court must determine if the plaintiff failed to exercise due diligence in serving process based on a standard of objective reasonableness and, if so, to exercise its discretion in determining whether the delay warrants a dismissal of the complaint. Graubard v. Balcor Co., 2000-NMCA-032, 128 N.M. 790, 999 P.2d 434.

Filing without requisite intent. — Filing of complaint one week before asserted cause of action would be barred did not toll statute of limitations where service of process was not procured for over 13 months, appellant having filed his complaint for the very purpose of tolling the statute of limitations and having had no intent to issue process immediately. Murphy v. Citizens Bank, 244 F.2d 511 (10th Cir. 1957).

Effect of pursuing wrong remedy. — Notice of appeal of state board of education's dismissal of teacher, and purported issuance of a so-called writ of certiorari by the clerk of the court, did not constitute the filing of a "petition, declaration, bill or affidavit" upon which process was "authorized by law to be issued," as the only remedy available for reviewing the actions of the board was certiorari issued by order of the court upon proper application. Roberson v. Board of Educ., 1967-NMSC-176, 78 N.M. 297, 430 P.2d 868.

Scire facias as an action. — While it is true that scire facias for an execution is ordinarily a judicial writ to continue the effect of the former judgment, yet it is in the nature of an action because the defendant may plead to it. Browne v. Chavez, 181 U.S. 68, 21 S. Ct. 514, 45 L. Ed. 752 (1901).

Leaving papers with clerk. — A paper left with the clerk for filing in a cause, whether marked "filed" or not, is a paper in the cause. In re Lewisohn, 1897-NMSC-013, 9 N.M. 101, 49 P. 909.

Law reviews. — For survey, "Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration," see 6 N.M.L. Rev. 213 (1976).

For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982).

For article, "Separation of Powers and the Judicial Rule-Making Power in New Mexico: The Need for Prudential Restraints," see 15 N.M.L. Rev. 407 (1985).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Limitation of Actions §§ 200 to 231.

Tolling of statute of limitations where process is not served before expiration of limitation period, as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations, 27 A.L.R. 236, 51 A.L.R.2d 388.

Ancillary proceedings as suspending or removing bar of statute of limitations as to judgment, 166 A.L.R. 767.

54 C.J.S. Limitations of Actions § 217.