Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-17

lege against co-defendant and that
no answer or reply thereto is required
1t would still De dangerous prece-
dent, which we would be reluctant to
to hold that the statute de-
MES for co-defendant facts not al
legged against him but stated in the
answer of another defendant to the
complaint, or that an issue would ne
~Nised against co-defendanI by the
mere filing without service Of an ans
wer containing new matter alleged
against the complaint of the plaintiff
The answer of Washoe County Bank
in the former suit not having been
served upon Gulling, and he having
fled no demurrer, answer or reply to
it, which would nave been a waiver
of service, we feel constrained to hold
that it raised no issue against him,
and if We concede for the purposes
here that denial by statute without
any pleading in reply is sufficient 20
tween co-defendants, such denial
light not to become operative before
service White v. Patton, 81 Cal. ISL;
;isments v. Davis. N Ind, s31. To
cid otherwise or establish different
practice. might cause litigants to suf
fer a great Injustice. An answer to
comp'airt ought to be served upon
the plaintiff but if it is not he ma.
be expecting it. or to secure de-
fault, he could not obtain judgment
without being aware of it, and would
not be likely to go to trial without
being prepared to meet the statutory
denial in his behalf of any new mat
ter it alleged 1t is different between
co-defendants Usually their interests
are not adverse, except to the plain
tiff, and one defendant may not *
pect that another defendant will set
up cause Of action and seek judg-
ment against him, and if he does he
should not be required to watch the
court records as Gulling could have
done for over four months after his
answer was filed to ascertain whether
any of his co-defendants filed cross
complaint against him, in order that
answer was filed, to ascertain whether
he might be prepared to meet it. I'm
til he is warned by service of the
pleading and demand or valves SER
vice or issue, he ought not to be
bound by any judgment based upon It.
If the Farmers and Mechanics Saw
ings Bank instead of the Washoe
County Bank had bought the property
at the trustees sale and relied upon
it's purchase, necessarily it would have
pleaded the fact by supplemental
complaint. and they would not have
been considered denied by Cuttings
answer to the original complaint, and
without service upon or waiver OF
service by him, q valid judgment bas-
ed upon facts occurring after he had
been served with the original COM
plant and filed his answer thereto,
could not have been taken by default
against him. In Mitchess v. Mitchel l.
70 P. 50, % New, we set aside the
action of the district court whereby
it granted q plaintiff relief not de-
manded in the complaint served upon
the defendant. That was pursuant to
statute, but there is NO more reason
for holding . defendant liable ON g
Judgment based on cross-complaint
or pleading Of codefendant without
service, than on one resting on COM
plant Of q plaintiff which has not
been served. In neither case should
the rights Of the parties be concluded
without service or q waiver thereof
It is said that service of the answer
of the Washoe County Bank will Ne
presumed, il necessary to support the
Judgment. Tho judgment roll and
the papers" in the first case were
introduced ON the trial and are
brought here in re statement on ap-
peal, and the case rests upon them
and not upon presumptions, and the
burden Of establishing estoppel Is up
on the defendant. II any admissfcc.:i
or afidavit Of service was made it
should be among those papers but none
appears and therefore we must con
clude that the answer was not served
The return Of the Sheriff and recital
in the findings indicate tina. .Gulling
was served with summons. and the
findings state that in due time he D.
peared and fled his answer to tn
complaint. Under these circumstar
ces further service will not be pr
sumed. GalpiA.v. Page, Is Wall, So
Beyond that appellants answer I
the present case does not allege tn 1t
the answer Of Washoe County Bank
was served upon Gulling in the other
suit and is defective In this vital re.
spect. Its allegations follow the facts
disclosed by, the record Of the former
action which show no service, and
IL states the conclusion that by the
Aling of the former answer an issue
! was raised against Gulling.
Numerous cases are cited by appel
liant halding that by going to trial o,
! new matter alleged In the answer with
out reply thereto, reply Is waive
even in states where the statute prC
vides for one. II this be the rule OF
i dinarily in actions between
plaintiff and defendant or wher
by cross complaint new maj
ter is alleged against = code
PENDANT, and the latter appear
and introduces evidence in regard to
the rule ought not to apply to case
like the present one where the ..
defendant is in court for other pu
poses and the answer IL in reply
! the complaint and does not state tn
; new facts as . complaint Q
: cause Of action against the co-defen'
ant, is not served or replied to by hir
, and he introduces no evidence Co