In all cases when properties or effects shall be attached, defendant may within the time limited in the writ of attachment, put in his answer, without oath, denying the truth of any material fact contained in the affidavit, to which the plaintiff may reply; and trial of the truth of the affidavit shall be had and on such trial the plaintiff shall be held to prove the existence of the facts denied, as set forth in the affidavit as the ground of attachment, and if the issue shall be found for plaintiff, the cause shall proceed, but if it be found for the defendant, the attachment shall be dismissed at the costs of plaintiff.

History: C.L. 1897, § 2685 (201), added by Laws 1907, ch. 107, § 1 (201); Code 1915, § 4316; C.S. 1929, § 105-1619; 1941 Comp., § 22-131; 1953 Comp., § 26-1-31.

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

Denial of affidavit's allegation puts case at issue. — In proceeding under the territorial statute to test the truth of the allegations of an affidavit for attachment, the affidavit is the complaint in the case, and a simple denial of its truth puts the case at issue, and the trial proceeds before the court and jury as in other cases of law. Talbott v. Randall, 1885-NMSC-015, 3 N.M. (Gild.) 364, 5 P. 537; Staab v. Hersch, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).

Issue upon traverse of affidavit in attachment is the existence of the stated ground for attachment, not affiant's belief of its existence, or good reason to so believe. Mundil v. Hutson, 1928-NMSC-034, 33 N.M. 388, 268 P. 566.

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

For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).