That the acceptance by nonresidents of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of New Mexico, or the operation by a nonresident, or his authorized chauffeur, or agent, of a motor vehicle on the said highways, other than under said laws, shall be deemed equivalent to an irrevocable appointment by such nonresident, binding upon his executor, administrator or personal representative, of the secretary of state of the state of New Mexico, or his successor in office, to be his true and lawful agent, upon whom may be served all lawful process in any action or proceeding against said nonresident, growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in the state of New Mexico by said nonresident, or by his authorized chauffeur or agent; and said acceptance or operation of said vehicle shall be signification of his agreement that any such process against him, or his executor, administrator or personal representative, which is so served on the secretary of state shall be of the same legal force and validity as if served upon him personally, or his executor, administrator or personal representative, within the state.
History: Laws 1931, ch. 127, § 1; 1941 Comp., § 68-1003; Laws 1953, ch. 146, § 1; 1953 Comp., § 64-24-3; recompiled as 1953 Comp., § 64-5-103, by Laws 1978, ch. 35, § 275.
Cross references. — For definition of "nonresident", see 66-1-4.12 NMSA 1978.
For personal service of process outside state in an action involving operation of a motor vehicle on a state highway, see 38-1-16 NMSA 1978.
Statutory intent. — It is the intent of this section and Section 66-5-104 NMSA 1978 to accomplish due process upon the defendant nonresident motorist by service of process upon the statutory agent of the defendant, and further, to give greater substance to the service of process by service personally upon the defendant of a notice that this formal part of the statutory service of process has been complied with, and also by the delivery to him personally of a copy of the process, a copy of the complaint, and a copy of the order of court directing the service. State ex rel. Dresden v. District Court, 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506.
"Nonresident". — The word "nonresident" includes every nonresident whether a corporation or an individual. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
"Process". — The word "process" is used in the sense of "summons." State ex rel. Dresden v. District Court, 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506.
When nonresident provisions inapplicable. — Service of process on New Mexico driver by serving a copy of the summons, complaint and court order upon the driver by an Arizona sheriff was valid under Section 38-1-16 NMSA 1978 concerning personal service out of state, where the driver was completely apprised of the case against him, even though plaintiff apparently thought at the time that service must be obtained under the nonresident motorist provisions (this section and Section 66-5-104 NMSA 1978). Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
Service upon director of dissolved corporation in Arizona is sufficient under New Mexico law; and it is not necessary that service be made in the state of incorporation. Crawford v. Refiners Coop. Ass'n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212.
Defendant must have been nonresident at time of accident. — To be valid, service on nonresident defendant by serving secretary of state requires that defendant was a nonresident at time of the accident and not at time the suit is filed. Fisher v. Terrell, 1947-NMSC-064, 51 N.M. 427, 187 P.2d 387.
Residence precludes service on secretary of state. — A finding to the effect that defendants were New Mexico residents at time of the accident would preclude service of process on secretary of state. Fisher v. Terrell, 1947-NMSC-064, 51 N.M. 427, 187 P.2d 387.
To confer jurisdiction under this section and Section 66-5-104 NMSA 1978 not only must a cause of action be stated in a complaint but a plaintiff "shall further show in his complaint or by affidavit" that a defendant was a nonresident owner or operator as contemplated by this section at the time of the accident or collision. The complaint cannot simply state that the defendants were nonresidents. St. Paul Fire & Marine Ins. Co. v. Rutledge, 1961-NMSC-024, 68 N.M. 140, 359 P.2d 767.
Jurisdiction may be proved during trial if nonresident defendants. — Where service of process on the out-of-state residents was sought pursuant to this section, the plaintiffs were entitled to the opportunity of proving jurisdiction during the trial on the merits and not be cut off at a preliminary hearing. Schramm v. Oakes, 352 F.2d 143 (10th Cir. 1965).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 8 Am. Jur. 2d Automobiles and Highway Traffic §§ 935 to 951.
Constitutionality and construction of statute authorizing constructive or substituted service of process on, and continuation of pending action against, foreign representative of deceased nonresident driver of motor vehicle, arising out of accident occurring in state, 18 A.L.R.2d 544.
What is "motor vehicle" or the like within statute providing for constructive or substituted service of process on nonresident motorist, 48 A.L.R.2d 1283.
Statute providing for constructive substituted service of process on nonresident motorist as applicable where accident occurs when motor vehicle or the person injured or property damaged was not on highway, 73 A.L.R.2d 1351.
61 C.J.S. Motor Vehicles § 502.