Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-19
washos a County BanR Id succeeded

to .the. -intarast -pe. plaintiff fhereQpon
rested. That Martin Cunning offered
and submitted eTidence and proof
and t. efeupon rested and that z.cnry
Ande, on, Washue County. Bank and
1.-THE defndantss and each Of them, hav-
ing submitted evidence. and proofs in
support of the issues made by them
dnz their answers, the icase was SUBJ
united 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 to
other facts alleged in the answer IF
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 Al the property
was conveyed to Washoe County Bank
clear of Cuttings mortgage, and that
the latter was entitled to 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 a 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
vi II do l,ok
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 fled
his answer. The court found in both
actions that $8,S0000, estimated %
be the amount due tue : armers' and
Mechanics Bank and notes held by
Washoe County .ank against the
Pollocks and Power for $4,000 un-
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
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
on the premises by the Pollocks and
Powell before they decided to defend.
ant, and is now prosecuted by the rep
resentatives of his estate. The de.
PENDANT pleads oy way of estoppel
the Judgment in the former action and
claims that by it Gulling was, and his
executors are. barred and fOreclosed
of all right to proceed against Washes
County Bank. The district court was
of the opinion that IN the earlier suit
1t did not have jurisdiction.tto make
the judgment effective in squieting the
title of appeallant against Gulling,
and it has now entered q decree oi
foreclosure and sale to satisfy his
mortgage, from which this appeal ID
taken. kag stssb 81 8 - s..rsa.sfat
The important questions under the
record and elaborate. and interesting
briefs are whether the matters =
/ lating toithe trustees sale ldetermin
ed in the former action -wefe within
the issues as between Gulling and
appellant, and II they were mot
whether he waived tho framing Of
issues so that ne became bound b
the decree. The, facts, stated in the
complaint Of Farmers and Mechanics
Savings Bank avering the execution
of the atrust deed were not denied by
any of the parties. The statute. 81
least in favor of the plaintiff, rails I'd
denials Of the facts alleged in Gul
ling's answer. These were in regara
TO the execution and non-payment G
his mortgage and did not relate I,
the trustees sale which took place
after his answer had been filed. and
therefore, if any issue existed re
garding this sale it must have beer
founded on the answer of the Washo
County Bank. On IS. behalf it Il
| urged that the answers of Gulllns
and the Bank maae direct issue o
his right to have the property saIt
| to pay his debts, but this is dealini
with conclusions and not with fact
| upon which issues are based. Guflir
did not raise any issue regarding tn
trustees sale fer his only answer wa
! filed before the sale and before tn
4 answer of the Washoe County Ban
in which 1t was alleged, and did ne
mention the name of the latter.
/ On behalf of appellant it is urge
that the only pleadings provided or 8
i lowed by the Practice Act for the a
legation of facts are complaint b
the plaintiff and an answer by a d
} PENDANT, and that in determining til
srights of co-defendants between thel
\ selves an answer is the only pleadi1
permissible and that it's allegatio,
are deemed denied by statute, whe
it states a cause of action against
!. co-defendant, the same as if it relat
new matter against a plaintiff F.
respondent different view is tax,
! and it is claimed that under Rose
Treadway, New, 460, and 9th
cases cited, that ordinarily the {
! PENDANTS in an action are not as i
! tween themselves adversary partis
! that they become such only when o
? files a pleading in the nature Of