If, after the commencement of an action, the plaintiff fail therein for any cause, except negligence in its prosecution, and a new suit be commenced within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.

History: Laws 1880, ch. 5, § 12; C.L. 1884, § 1872; C.L. 1897, § 2925; Code 1915, § 3355; C.S. 1929, § 83-110; 1941 Comp., § 27-113; 1953 Comp., § 23-1-14.

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

Res judicata in first action. — Where plaintiff's claim is barred on res judicata grounds, plaintiff cannot invoke the savings statute to claim continuation of an action which never existed. Murphy v. Klein Tools, Inc., 935 F.2d 1127 (10th Cir.), cert denied, 502 U.S. 952, 112 S.Ct. 407. 116 L.Ed.2d 355 (1991).

Actions filed in other states. — State statutes are applicable to actions originally filed in sister states. Prince v. Leesona Corp., 720 F.2d 1166 (10th Cir. 1983).

Construction. — The "exception" in this section goes to the status of a new suit as a continuation of the first and not to the right to file a new suit within the period of the statute of limitations. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648; City of Roswell v. Holmes, 1939-NMSC-062, 44 N.M. 1, 96 P.2d 701.

The words "for the purposes herein contemplated" referred only to the subject matter of the particular act enacting the section (Laws 1880, ch. 5). Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Claim of continuation must be made in trial court and reflected in the record (though not necessarily in the pleadings). State ex rel. Brown v. Hatley, 1969-NMSC-018, 80 N.M. 24, 450 P.2d 624.

Failure to claim continuation. — Action filed after statute had run, subsequent to dismissal of timely first action, was properly dismissed by trial court where no reference to or request for recognition of the first action was made therein. Miller v. Smith, 1955-NMSC-021, 59 N.M. 235, 282 P.2d 715.

Substantial similarity required. — For a complaint to be considered a continuation of a prior complaint, both must be substantially the same, involving the same parties, the same cause of action and the same right, and this must appear from the record. Rito Cebolla Invs., Ltd. v. Golden W. Land Corp., 1980-NMCA-028, 94 N.M. 121, 607 P.2d 659.

New remedy qualified by time limitation on exercise of right. — Where a statute grants a new remedy and at the same time places a limitation of time within which the person complaining must act, the limitation is a limitation of the right as well as the remedy and, in the absence of qualifying provisions or saving clauses, the party seeking to avail himself of the remedy must bring himself strictly within the limitations. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

Second cause as continuation of first. — Where dismissal of first suit was not based upon the discretionary power of the court to dismiss stale claims, nor was there any finding or conclusion regarding negligence of plaintiffs in prosecuting that cause, the second cause having been filed within six months after the dismissal of the first was a continuation thereof and not barred by the statute of limitations. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Action not barred. — Where the record in the trial court adequately shows that the mandamus action by teacher seeking hearing on termination and tenure is a continuation of the older one, being based on substantially the same cause of action and involving substantially the same parties, it is not barred by statute of limitations. State ex rel. Brown v. Hatley, 1969-NMSC-018, 80 N.M. 24, 450 P.2d 624. For subsequent appeal, see State ex rel. Brown v. Hatley, 1973-NMSC-027, 84 N.M. 694, 507 P.2d 441.

Negligent prosecution of first suit. — The statute of limitations on a cause of action is tolled if a new suit setting forth essentially the same cause of action between the same parties is commenced within six months after a dismissal, except when the dismissal was based on the plaintiff's failure to pursue his claim. United States Fire Ins. Co. v. Aeronautics, Inc., 1988-NMSC-051, 107 N.M. 320, 757 P.2d 790.

Where there was negligence in the prosecution of the first case, the second complaint was not a continuation of the first, and was barred by the statute of limitations. Benally v. Pigman, 1967-NMSC-148, 78 N.M. 189, 429 P.2d 648.

Failure to prosecute and negligence in the prosecution are one and the same for purposes of this section. Barbeau v. Hoppenrath, 2001-NMCA-077, 131 N.M. 124, 33 P.3d 675.

Summary judgment for defendants was proper and personal injury plaintiffs were not entitled to the protection of the savings statute where they negligently failed to file suit until two days before the expiration of the statute of limitations and filed their complaint in the wrong jurisdiction, then sought relief under the savings statute. Barbeau v. Hoppenrath, 2001-NMCA-077, 131 N.M. 124, 33 P.3d 675.

Filing in improper venue was not negligent prosecution. — Where plaintiff filed a subrogation action in Bernalillo county before the statute of limitations period had expired; the district court dismissed the action without prejudice for lack of venue; and plaintiff filed a new complaint in Santa Fe county after the statute of limitations period had expired, plaintiff's venue mistake did not constitute negligent prosecution and the Santa Fe county action was a continuation of the Bernalillo county action. AMICA Mut. Ins. Co. v. McRostie, 2006-NMCA-046, 139 N.M. 486, 134 P.3d 773, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120.

A dismissal for failure to prosecute is functionally the same as a dismissal for negligence in prosecution. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Where an action is dismissed without prejudice because of a failure to prosecute, the action will be deemed not to interrupt the running of an otherwise applicable statute of limitations, and a subsequent suit filed on the same claim as the first after the statute has run will be barred. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Dismissal of federal court suit for lack of diversity. — Where plaintiff filed a personal injury suit in federal district court alleging that there was complete diversity of citizenship between plaintiff and defendants; the federal district court found that defendants were citizens of New Mexico and dismissed plaintiff's suit without prejudice for lack of subject matter jurisdiction because complete diversity did not exist; plaintiff refilled the suit in state district court as a continuation of the federal court suit; and defendant's evidence failed to show that plaintiff knew or reasonably should have known or that plaintiff's attorneys knew or reasonably should have known that defendants were corporate citizens of New Mexico when plaintiff filed the federal court complaint, plaintiff's state court case was a continuation of the federal court case because defendants did not make a prima facie showing that plaintiff was negligent in prosecution of the federal court case as a matter of law. Foster v. Sun Healthcare Group, Inc., 2012-NMCA-072, 284 P.3d 389, cert. denied, 2012-NMCERT-006.

Dismissal for failure to prosecute. — When an action is dismissed without prejudice because of a failure to prosecute, the interruption of the statute of limitations is considered as never having occurred. Meiboom v. Watson, 2000-NMSC-004, 128 N.M. 536, 994 P.2d 1154.

No continuation of null suit. — Complaint brought against a defendant who is dead or nonexistent may not be amended, after the period of the statute of limitation has expired, so as to bring in a defendant having the capacity to be sued, the rule of relation back not applying since there was no suit to relate back to. Mercer v. Morgan, 1974-NMCA-102, 86 N.M. 711, 526 P.2d 1304.

Judgment upon merits would operate as bar to new suit. Cartwright v. Public Serv. Co., 1961-NMSC-074, 68 N.M. 418, 362 P.2d 796, overruled on other grounds by State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

This section applies only where the original action has failed other than on the merits or where no final judgment on the merits has been entered in the first action; it is inapplicable where the original action has been dismissed after a trial on the merits, or where the judgment entered therein is a final judgment on the merits or where the judgment is res judicata. Cartwright v. Public Serv. Co., 1961-NMSC-074, 68 N.M. 418, 362 P.2d 796,overruled on other grounds by State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47; Rowe v. LeMaster, 225 F.3d 1173 (10th Cir. 2000).

Time-barred action could not be continued. — Where plaintiff filed an action in state court under 42 U.S.C., §1983; the state court dismissed plaintiff's action on the ground that it was barred by statute of limitations; and plaintiff filed the same action in federal court, plaintiff's action in federal court was not a continuation of plaintiff's state court action, because plaintiff's state court action was time-barred and plaintiff did not have an action to continue in federal court. DeVargas v. Montoya, 796 F.2d 1245 (10th Cir. 1986), but see Newcomb v. Ingle, 827 F.2d 675 (10th Cir. 1987).

Section 37-1-14 NMSA 1978 applies to a dismissal for lack of venue. AMICA Mut. Ins. Co. v. McRostie, 2006-NMCA-046, 139 N.M. 486, 134 P.3d 734, cert. denied, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120

Section is inapplicable to New Mexico Wrongful Death Act. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

This section does not apply to actions under Tort Claims Act, Article 4 of Chapter 41. Estate of Gutierrez v. Albuquerque Police Dep't, 1986-NMCA-023, 104 N.M. 111, 717 P.2d 87, cert. denied sub nom. Haney v. Albuquerque Police Dep't, 103 N.M. 798, 715 P.2d 71 (1986), overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

Worker's compensation claims. — Section 37-1-17 NMSA 1978 prohibits this section from applying in worker's compensation and occupational disablement cases, since both the Workmen's (Workers') Compensation Act and the Occupational Disablement Law contain specific statutes of limitations, 52-1-31 and 52-3-16 NMSA 1978, and neither act provides a saving clause allowing for an extension of the specified time limit for filing a claim. Ortega v. Shube, 1979-NMCA-130, 93 N.M. 584, 603 P.2d 323, overruled on other grounds by Bracken v. Yates Petroleum Corp., 1988-NMSC-072, 107 N.M. 463, 760 P.2d 155.

This section does not apply to breach of contract suits against the state. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Contractual limitation not extended. — Limitation contained in insurance policy for bringing suit (which was issued prior to enactment of statute prohibiting issuance of other than standard policies) was contractual, and not statutory, and was not extended by statutory provision that, for purpose of computing limitations, a new suit commenced within six months after a former suit has failed, shall be deemed a continuance of the first. Davis v. United States Fire Ins. Co., 1931-NMSC-012, 35 N.M. 381, 298 P. 671.

Amendment of complaint. — An amended complaint will take effect by relation, avoiding the bar of the statute if the original pleading was timely, and if the identity of the cause has been preserved, and does not bring in a new cause of action. A complaint in suit on notes abandoning the allegation that defendant executed the notes in his own name, and alleging by amendment that he executed the notes as of a partnership, is not a new cause of action. Harris v. Singh, 1933-NMSC-091, 38 N.M. 47, 28 P.2d 1.

"Equitable" or nonstatutory tolling doctrine. — New Mexico has adopted an "equitable" or nonstatutory tolling principle alongside the statutory tolling provisions in this chapter. This nonstatutory tolling doctrine, however, should be subject to the same exception or limitation as applies in the statutory situations: Where an action is dismissed for failure to prosecute (negligence in its prosecution), the limitations period will not be interrupted. Gathman-Matotan Architects & Planners, Inc. v. State, Dep't of Fin. & Admin., 1990-NMSC-013, 109 N.M. 492, 787 P.2d 411.

Law reviews. — For comment on Cartwright v. Public Serv. Co., 66 N.M. 64, 343 P.2d 654 (1959), see 8 Nat. Resources J. 727 (1968).

For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).

For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 51 Am. Jur. 2d Limitations of Actions §§ 301 to 315.

Character or kind of action or proceeding within operation of statute which permits new action after expiration of period of limitation, upon failure of previous action commenced within the period, 79 A.L.R.2d 1309.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Statute permitting new action, after failure of original action timely commenced, as applicable where original action was filed in another state, 55 A.L.R.2d 1038.

Voluntary dismissal or nonsuit as within provision of statute extending time for new action in case of dismissal or failure of original action otherwise than upon the merits, 79 A.L.R.2d 1290.

Character or kind of action or proceeding within operation of statute permitting new action after limitation period, upon failure of timely action, 79 A.L.R.2d 1309.

Statute permitting new action, after failure of original action commenced within period of limitation, as applicable in cases where original action failed for lack of jurisdiction, 6 A.L.R.3d 1043.

Application to period of limitations fixed by contract, of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits, 16 A.L.R.3d 452.

54 C.J.S. Limitation of Actions §§ 240 to 249.