Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-13


eye against cc-defeldant and that
i would still Oe q dangerous .prece-
establish. to hold that the statute de-
sa.es for ce-e etendant facts not al
eyed aga nst ia but steted in the
answer CT al tier defendant to the
omplaint, or Eat an Is sue would ne
o ags cc-defendan, by the
mere fling without service of an ans
yer containing new matter alleged
ga nst the complaint of the plaintiff
the answer of Avashce County Bank
II the former suit not having been
served upon GuIiing, and he having
lied no demu rer, answer or reply to
t, which would nave been a waiver
# service, we feel constrained to hold
hat il raised no issue against him,
and il we concede for the purposes
here that denial by statute without
any pleading in reply is sufficient %
tween co-defendants, such denial
ought not to become operative before
service. White v. Potion 81 CAL Isl:
Clements v. Davis. ~ INC, es1. TO
hold otherwise or establish different
practice, might cause litigants to sui
fer great injustice. an answer to
a complaint ought to be served upon
the plaintiff but If it is not he ma
be expecting it. or to secure a 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 a 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
'ngs Bank instead of the Washoe
County Bank had bought the property
1T the trustees sale and relied upon
its purchase, necessarily it would have
pleaded the fact by supplemental
complaint. and they would not have
been considered denied bv Culling'-
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 fled his answer thereto,
could not have been taken by default
against him. In Mitchess Y. Mitchell.
70 p. so, Is New, we set aside the
action of the district court whereby
it granted q plaintiff relief not DE-
handed In the complaint served upon
the defendant That was pursuant to
statute. but there il no more reason
for, holding . defendant liable on a
Judgment based on 2 cross-complaint
or pleading q q 'cosdefeGdant without
service. than on one resting ON q CON-
plant Of 4 plaintiff which has not
been served. In neither case should
the rights Of the parties be concluded
without service or & waiver thefeof
Il It isssasd that 'Servieg 1T the answer
Of the, Washce County Bank will Ne
presumed. II necessary. to support the
judgment. Tho Judgment roll and
tho pip6fs"s IN the NIT cAs0 were
|introdnoetisa o. tho stfi4le Ands ;Afe
brought here IN e..,e statement On APP
peal, and the caso rests upon, them
and hot gdpon tteshmptioHs, and the
|burdsas1f sstab4lsAl6g isti6fpbe1 II ups
on thes ddfeadsat-nn a11b adnAiss1esf
orr afndaxitn observes syas, cmad6s It
should be among those papevs hut none
appears M" tl14refotoe VI MNdst Con
clude that The answer WI hot served.
ThoreturH Of tho 0heri6 AUd r6citM
in tho findings indicate. tha. Guiiiug
was served with summons, and the
/ findings state that in due time ne p
peared and Aled his. answer to tho
|comp1 Under stifese' cffc0MStan-
49, further aervlceFNill not be PR
snmed. 9spA NAklke. ~ Vail 36G
Beyond that appellants answer in
|tAe present .easerdeeosQg mn
the answersNhs Was16 c6uMky H4Kk
was seryedrupon GeIllh tin other
suit and - sdeeb ctiS1 ID stHsBzvftA1f 70
spect. It's alieeatidlBsf0nbw the facts
Disclosed by the record Of the former
action which sAow NO service. and
it states the chnclusioa- Tat by the
fling of the &opmer s1kSwe1sA IN issue
Was raised against tsslflnkaeNs =
Numerous Ioa6esl afes cited ~ lapel
liant haldiueS ah1t shysgoing TO trial s0n
new matter alleged ihthe answer With
out . reply thereto. d reply. 10 waive.
even in stated4where the statute pro
vides for one. N this BE the rulesor
ldinarily 50 ins Sctionse between 1
plaintin s,and defendarts' or WHERE
by: CROSSE complaint new mat
lterA is alleged agajnsx - code
lfendant, and the latter appeArl
and. Introduces evidence ii regard to
the rule ought not - sxpply 10 ease
like the present dne w16fe Athe "a
defendant is in court for eother pm
poses and the answer is In reply! q
1.-The complaint and does not state tn
Inew facts as 81 crossEosapiadht d
cause oR4action against the 'e0-deEend
Il ~nk< T. se.k. ~opwaN ~ AMMAN a. 49, t{SS