In one sentenceRule 1-039 provides that issues not set for a jury are tried by the court, and lets the court order a jury, use an advisory jury, or try issues by consent.
A.By the court. All issues not set for trial to a jury as provided in Rule 1-038 shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.
B.Advisory jury and trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury; or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
End
Plain-English Summary
This rule allocates issues between judge and jury. Anything not set for a jury under Rule 1-038 is tried by the court; but even when a party failed to demand a jury it could have had as of right, the court may in its discretion order a jury trial of any or all issues.
For matters not triable to a jury as of right, the court may try an issue with an advisory jury, or—with both parties’ consent—order a jury whose verdict has the same effect as if a jury trial had been a matter of right.
Frequently Asked Questions
What happens to issues for which no jury was demanded?
They are tried by the court, though the court may in its discretion order a jury trial of any or all issues even when no timely demand was made.
What is an advisory jury?
In matters not triable to a jury of right, the court may empanel a jury whose verdict advises the court; with both parties’ consent, the verdict can instead be given the same effect as one of right.
Source & verification. Rule text and Committee commentary reproduced verbatim from the
New Mexico Rules of Civil Procedure for the District Courts (Rule 1-039 NMRA), published by the New Mexico Compilation Commission (NMOneSource).
Promulgated by the Supreme Court of New Mexico. The plain-English summary is original and draws on the official annotations. Last verified June 26, 2026. ·
Official source
Also known as:trial by courtbench trialadvisory jurytrial by consent