Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-21

Washoe County. Bank had succeeded
to the interest Of pi1intiff, thereup0n
rested. That. Martin .Guliing offered
and submittef evidence and proofs
and thereupOn rested and that Henry
Ande ION. Washoe County Bankean
1.-The defndants and each, of them, hav-
ing submitted evidence and proofs in
support of the issues made by them
in their answers, the case was SUBJ
mitted to the court" The fair in
ference from the language and from
proofs is thatuhe 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 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 alf 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.
the amount due on his note but not
to q 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 allie
cations and demands of the complaint,
Orthat 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 found in both
actions that S8,S00.00, estimated 20
be the amount due tue : armers' and
Mechanics Bank and notes held by
Washoe County oank against the
PollOcks and Power. for $4,000 un-
secured after the execution of the
mortgage to Gulling, constituted the
consideration expresseu at $14,00O00
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 9, 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-
fendantl 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. I. The district court was
| OF the opinion that in the earlier suit
| it did not have Jurisdiction, to make
the judgment effective ID quieting the
! title OF appellant Against fGulling,
and it has now entered = decree OF
| foreclosure and, sale to ,satisfx his
mortgage. from which this appeal 10
/ taken 1s - f.1 sHff
The important Aueseisas ssidst the
record and elaborate and interestSn9
briefs are whether 4 ho matters =
lating to the trustees sale, determin-
ed in the former 'actioh we're within
the issues as betweeu 0ulling and
appellant, and. II lthsH were not.
whether he waived tbs ,framing :. qf
issues 30 that he became bould "
the decree The tact1 16Rfed IL tH8
complaint Of FARMERS and M66hxnies
Savings Bank avering the sexeenttol
Of the trust. deed were not denied by
any Of the parties. Tho statute, 1T
denials sof the ;fect4 AllAgad u, Col.
iings answsr.J These we're in regard
to the executions ana non yment q
his mortgage aha dit me- reli66 Il
| the trustees. sale which took 5splaes
after his answer haA been filed. and
therefore, IL any issue existed re-
garding this sale 1t must shav6 been
founded on the answer bf the Washo<
County Bank. On ISL behalf IT, u
urged that the sanswery a, Gulltns
and the Bank maze . direct issue q
his right to have the property said
to pay his debts, but this 10 dealing
with conclusions and not With fact,
upon which issues are based. GulliAs
did not raise any issue regarding thu
trustees sale for his only answer wal
filed before the sale and before tn
answer of the Washoe County Raul
in which it was alleged. and did NO
mention the name Of the latter.
i On behalf of appellant it il urge,
that the only pleadings provided or 81
lowed by the Practice Act for the Al
legation of facts are . complaint b.
theA plaintiff and an answer by a d.
d PENDANT, and that in determining tn
y rights Of codefendants between then
selves an answer is the only pleadia
permissible and that its, allegation
are deemed denied by statute, whe
it states a cause of action against
co-defendant, the same as IL it relate
, new matter against plaintiff. FC
respondent a different view is take
and it is claimed that under Rose
Treadway, New, 46O, and 9th.
cases cited, that ordinarily the d
. PENDANTS in an action are not, as /,