All the executions taken out of 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 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 twenty days public notice of the time and place of the sale, in the manner provided by law. All personal property, taken by virtue of any execution, may be sold as provided by law. All executions may issue on application, and the service and return thereof shall be controlled by the plaintiff or his agent.

History: Laws 1873-1874, ch. 15, § 2; C.L. 1884, § 2168; C.L. 1897, § 3117; Code 1915, § 2200; C.S. 1929, § 46-111; 1941 Comp., § 21-109; 1953 Comp., § 24-1-9.

Cross references. — For further provisions relating to notice of judicial sale, see 39-5-1 to 39-5-4 NMSA 1978.

For appraisal of property to be sold at judicial sale, see 39-5-5 to 39-5-11 NMSA 1978.

For publication of "legal notice," see 14-11-1 NMSA 1978 et seq.

For similar provisions relating to time for return of writ of execution, see 42-9-16 NMSA 1978.

For rule relating to process and publication of notice, see Rule 1-004 NMRA.

For rule of procedure governing executions, see Rule 1-065.1 NMRA.

Section is directory and a failure of the officer serving the writ of execution to file his return within 60 days from the date of delivery did not destroy the legal effect of the return. Inman v. Brown, 1955-NMSC-018, 59 N.M. 196, 281 P.2d 474.

Fees not authorized. — The sheriff is not authorized to charge or collect fees for the custody of real estate under levy of execution. Retsch v. Renehan, 1911-NMSC-057, 16 N.M. 541, 120 P. 897.

Liability of sheriff. — A sheriff seizing goods in pursuance of a writ issuing out of a court of competent jurisdiction is protected against an action by the judgment debtor owning the property unless there has been an abuse of authority. Gallegos v. Sandoval, 1909-NMSC-025, 15 N.M. 216, 106 P. 373.

Gross misconduct. — If an officer goes outside the mandate of his process and commits a tortious act, he is liable as a trespasser ab initio; but, to render him liable, the misconduct must be so gross as to indicate intent at the outset to use his process as a cover for wrongdoing. Gallegos v. Sandoval, 1909-NMSC-025, 15 N.M. 216, 106 P. 373.

Service within prescribed period. — If writ of execution was placed in sheriff's hands within 60 days before the levy was made and the return filed, he cannot be held liable as a trespasser on the theory that the writ was functus officio. Gallegos v. Sandoval, 1909-NMSC-025, 15 N.M. 216, 106 P. 373.

Exclusive control over service and return of the execution lies in the plaintiff or his agent. Rocky Mountain Ethanol Sys. v. Mann, Inc., 21 B.R. 707 (Bankr. D.N.M. 1981).

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 30 Am. Jur. 2d Executions § 295 et seq.

Effect of return made after return day, 2 A.L.R. 181.

Sheriff's deed as prima facie evidence of return, 36 A.L.R. 1001, 108 A.L.R. 667.

False return made by assistant or deputy, liability of sheriff, constable or marshal or his bond for, 71 A.L.R.2d 1140.

Issuance or levy of execution as extending period of judgment lien, 77 A.L.R.2d 1064.

Execution sale as affected by modification of judgment, 32 A.L.R.3d 1019.

33 C.J.S. Executions §§ 56, 196 to 200, 318.