Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-19

matter which one defendant may al.
lege A&aipet = codefepdant and that
no answer or feply thereto lie required
It would still ce = dangerous prece-
dent which we would be reluctant to
establish, to hold that the statute de-
mics for q co-defendant facts MT al
legged against. him. but stated in the
answer OF another defendant to the
complaint. or that an issue would ne
raised against q co-defendant by the
mere Hing without service of an ans
wer containing new matter alleged
against the complaint of the plaintiff.
The answer OF Washee County Bank
in the, former suit not having been
served upon Guliing, and he having
fled no demurrer, answer or reply to
/ it, which would have been a waiver
; of service. we feel constrained to hold,
that lit raised no issue against him,
and if we concede for the purposes
here that denial by statute without
any pleading in reply is sufficient DO
tween sco-defendants, such denial
ought not to become operative before
service. White v. Patton, 81 Cal. ISL;
Clements v. Davis, N Ind, 631 To
hold otherwise or establish different
practice, might cause Etigants to suf-
fer q great injustice: An answer to
a complaint ought to be served upon
the plaintiff but If it is not he NAV
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
hi ~, 4
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
its purchase, necessarily it would have
pleaded the fact by supplemental
complaint, and they would not have
been considered denied by, Gulling'r
answer to the original complaint, and
without service upon or waiver OF
/ service by him, valid judgment has.
ed upon facts occurring after he had
l been served, with the original com
| plant and filed his answer thereto,
! could not have been taken by default
/ against him. In. Mitchess v Mitchell,
4 79, p 50,s 28 New, we set aside the
action Of the district court whereby
it granted a plaintiff relief not d :.
manded in the complaint served upon
the defendant. That was pursuant to
statute, but there il mo- more reason
for holding q 2defendant liable ON q
i Judgment, based on. q .cross-complaint
or pleading Of co-defendant without
service, than on one resting on com
plant Of a plaintiff which has not
/ been served. I'm neither case, should
the rights Of the parties be concluded
i without service or waiver thereon.
It is said that service of the answer
fof the Washoe County Bank viii ne
presumed, il NECESSARY to support the
Judgment The Judgment roll and
the papers in the first case were
introduced on the trial and are
brought here in .-e statement on ap.
,lpeal, and the, case rests upon them
A - M n ,
burden of establishing estoppe1 Is up
on the defendant If any admissicc..,
or affidavit of service was made II
should he among. those spapsrs but none
appears and sthersfors we must con
clude that. the answer was not served
The return OF the Sheriff and recital
J in the findings indicate tina. Gulling
was served, with summons. and the
findings. state that, in due time he, p
peared and filed his answer to til
complaint. Under these circumsta,
ces further service will not be pr
sumed. Galpin y. Page, Is Wall, sc
A. Beyond that appellants answer
the present case does not allege tn II
the answer of Washce County Banl
!, was served upon Guning in the otneI
suit and is defective in this vital re
!, spect. It's allegations follow the fact!
disclosed by the record of the. forme
; action which show no service, an.
; it states the conclusion that by tn
( filing of the( former. answer an issu
t was raised against Iulling.
Numerous cases are cited by appe
I liant halding that by going to trial o
/ new matter alleged in the answer will
: out reply thereto, a reply Is waive
Y even in states where the statute pr,
; vides for one. If this be the rule o
9 dinarily in actions between
n plaintiff and defendant or wher
z by cross complaint new ma
IS ter is alleged against a cod
n PENDANT, and the latter appear
a and introduces evidence in regard to
IS the rule ought not to apply to cas-
n like the present lone where the {.
n defendant is in court fer other pu
v. poses and the answer is in reply
A.