A. If the plaintiff prevails in a garnishment proceeding, he may be awarded either one or both of the following:

(1) the actual costs of the proceeding, not exceeding ten percent of the judgment entered against the garnishee; or

(2) a reasonable attorney fee not exceeding ten percent of the judgment entered against the garnishee.

B. If the garnishee answers as required by law, the court shall award the garnishee his actual costs and a reasonable attorney fee. The award shall be against the defendant if the plaintiff prevails and against the plaintiff if the garnishee prevails.

History: 1953 Comp., § 36-14-13.1, enacted by Laws 1977, ch. 84, § 1.

Cross references. — For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.2, 2-802, and 3-802 NMRA, respectively.

For form for claim of exemptions on executions, see Rule 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.

For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.

For form for claim of exemption from garnishment, see Rule 4-809 NMRA.

Award of costs and fee limited. — This section requires that a garnishee be awarded actual costs and a reasonable attorney fee for filing the answer. However, any award is limited to those matters fairly and necessarily litigated as a direct result of the garnishment proceeding. Bank of N.M. v. Priestley, 1981-NMSC-025, 95 N.M. 569, 624 P.2d 511.

Attorney fees and costs. — Garnishees are entitled to an award of a reasonable attorney fee and actual costs expended for services rendered in the filing of an answer to the writ of garnishment, and for the trial and appeal of the garnishment proceedings. Bank of N.M. v. Northwest Power Prods., Inc., 1980-NMCA-121, 95 N.M. 743, 626 P.2d 280.

Attorney fee on appeal is discretionary. — What constitutes a reasonable attorney fee on appeal is discretionary with the appellate courts. Vinton Eppsco, Inc. v. Showe Homes, Inc., 1981-NMSC-114, 97 N.M. 225, 638 P.2d 1070.

Garnishee held to be "prevailing party". — Garnishee, which defeated garnishor's claim that garnishee violated a legal duty to stop payment on checks sent to payee, was "prevailing party" entitled to attorney's fees and costs at the trial and appellate levels. Cent. Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, 125 N.M. 438, 963 P.2d 515, cert. denied, 125 N.M. 322, 961 P.2d 167.

Appellate court can award fee or remand for award. — Appellate courts have authority to either make an allowance of attorney fees on appeal or to remand to the lower court for that purpose. Vinton Eppsco, Inc. v. Showe Homes, Inc., 1981-NMSC-114, 97 N.M. 225, 638 P.2d 1070.

Attorney's fee award upheld. — Garnishee was entitled to an award of attorney's fees out of the monies due the judgment debtor husband based upon the filing of its answer and its claim that wife was a necessary party to the garnishment proceeding. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.

Award to both plaintiff and garnishee. — Under this section, the trial court could properly award attorney's fees to both plaintiff and the garnishee. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment § 407.

Right upon ground of duress to recover back money paid upon an excessive or unfounded claim to avoid an attachment, 18 A.L.R. 1233.

Right to recover attorney's fees for wrongful attachment, 25 A.L.R. 579, 65 A.L.R.2d 1426.

Injury to credit as element of damages for wrongful attachment, 54 A.L.R. 451.

Constitutionality, construction and application of statutory provisions for recovery of damages by defendant in attachment or garnishment, 125 A.L.R. 1219.

Taxable costs and disbursements as including expenses for bonds incident to steps taken in action, 90 A.L.R.2d 448.

Amount of compensation of attorney for services in absence of contract or statute fixing amount, 57 A.L.R.3d 475.

38 C.J.S. Garnishment § 301 et seq.