(specially concurring).
I specially concur.
Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 312, 551 P.2d 1354 (1976) holds “that under our Constitution the Legislature lacks power to prescribe by statute rules of evidence and procedure . . . Section 37-1-13 [when action deemed commenced] is procedural and therefore invalid. Rule 3 of the Rules of Civil Procedure is controlling. It reads:
A civil action is commenced by filing a complaint with the court.
Plaintiff’s complaint was filed within the limitation period and tolled the statute. The issue of delay in service of process from the date of filing the complaint to the date of service and the decision of the trial court on the issue of intent under § 37-1-13 are irrelevant to this appeal.
On January 15,1980, two members of this Court erroneously remanded this case to the district court to hold a hearing and make a decision on the issue of intent. A hearing was held and a transcript filed in this Court and briefing time for briefs to be filed.
The costs expended for the hearing, including attorney fees, should not be assessed against the parties to this interlocutory appeal. The cost bills should be submitted to the Clerk of this Court and paid by this Court out of any funds available.