Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-20

10 the lul6lS8I Ol QlAAuIIW, L00ESUVO0
rested. That Martin Guliing offered
and submitted evidence and pro6fs
! and thereupon rested and that Henry
Ande, IN, Washoe County Bank AMI
ssthe defndants and each Of them, hzv-
| ing submitted evidence and proofs in
support OF the issues made by them
! in their answers, the case was sub
mitted to the court The fair in
| ference from the language and from
the fact that he was first to submit
proofs is that he introduced evidence
to support the allegations of his ans
wer which averred the execution and
| non-payment of his mortgage. but that
he did not offer any in relation 10
other fa&s alleged in the answer Of
Washoe County Bank. The findings
and decree in that action disposed Of
| the claims of these other defendants
and. found and declared that the sale
! and deed made by the trustees was in
accordance with the terms of the
trust deed and that by. such sale and
deed all the interest IA the property
was conveyed to Washoe County Bank
clear OF Cuttings mortgage, and that
| the latter was entitled to a Judgment
| against the Pollocks and Powell for
tue amount due on his note but not
to a degree of foreclosure. The find
| ings recite that defendant Gulling
was made party to the action and
was duly served with process therein,
and in due time filed his answer to
! plaintiffs complaint but it does not
| appear that there was any other SER
vice upon him, or issue made that
rendered him liable beyond the ale
cations and demands of the complaint,
or that would cut off his right by reason
| of the sale by the trustees which did
| not take place until after he had filed
his answer. The court hound in both
actions that $8,S00.0O, estimated TO
I be tue amount due tue armers' and
| Mechanics Bank and notes held by
Washoe County Sank against the
PollOcks and POwe.l for $4,000 I'M
secured after the execution of the
mortgage to Gulling, constituted the
consideration expressed at $14,000.00
for the deed from them to Washoe
( County Bank, and that the property
was WORTH about that sum at the date
OF the trustees sale anu the time Of
| the trial
A blank space in the decree in the
first action for judgment in the
amount owing by the Pollocks and
| Powell to Gulling on his note and
4 mortgage remains untitled. The case
now before the Court was brought by
Martin Gulling on June 8, 1902 against
Washoe County Bank as grantee TO
foreclOse his mortgage so executed
4 on the premises by the Pollocks and
4 Powell before they decided to defend
ant, and is now prosecuted by the rep
resentatives of his estate. The de-
PENDANT pleads ny way of estoppel,
! the judgment in the former action and
claims that by it Gulling was, and his
i executors are barred and foreclosed
| of all right to proceed against Washos
County Bank. The district court wa5
Of the opinion that in the earlier suit
it did not have jurisdiction to make
the judgment effective in quieting the
title OF appellant against Gulling,
and it has now entered q decree d
foreclosure and sale to satisfy his
mortgage, from which this appeal 10
taken.
The important questions under the
record and elaborate and interesting
briefs are whether the matters g
lating to the trustees sale determin-
ed in the former action were within
the issues as between Gulline and
appellant, and IL thsy we're not,
whether he waived the framing Of
issues 50 thak he became bound ~
the decree. The facts stated In tho
complaint Of Farmers and Mechanics
Savings Bank -avering the execution
Of the trust deed were not denied By
any of the parties. The statute, 1T
least in favor Of the plaintiff. raissd
denials Of the facts alleged in Gul-
ling's answer. These were In reg1r1
to the execution and non-payment ci
his mortgage and did not relate ia
the trustees sale which took place
after his answer had been filed. and
therefore, II any issue existed re-
garding this sale it must have been
founded On the answer Of the Washoe
County Bank. On 4es oehalf it -
urged that the answers Il Gulling
and the Bank made q direct issue 81
his right to have the property said
to pay his debts, but this is dealing
with conclusions and not With facts
upon which issues are based. Qullins
did not raise any issue regarding the
trustees sale for his only answer was
filed before the sale and before thu
answer OF the Washoe County Banl
in which it was alleged, and did no
mention the name Of the latter.
On behalf of appellant it h urget
that the only pleadings provided or al
lowed by the Practice Act for the al
legation of facts are complaint b,
the plaintiff and an answer by a dc
, PENDANT, and that in determining tn
. rights of codefendants between then
!. selves an answer is the only pleadin
permissible and that its allegation
are deemed denied by statute, whe
it states q cause of action against
co-defendant, the same as if it relate
: new matter against plaintiff. Fo
respondent different view is take
and it is claimed that under Rose
Treadway, New, 400, and otha
cases cited, that ordinarily the d.
: PENDANTS in an action are not as D
tween themselves adversary partie
: that they become such only when on
: files a pleading in the nature Of
? crOSS-cOmn1ainf seeking of7Srma RI q