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

matter which one defendant may al
iege against ~codefendant and that
no answer or reply thereto Is required
it would still 'De q dangerous prece-
dent, which we would be reluctant to
establish. 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
raised against co-defendant by the
meqe filing without service of an ans
werNc0ntaining new matter alleged
against the complaint. of the plaintiff.
in the former suit not having been
served upon sGuliing, 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 1t raised no issue against him,
and il we concedei for the purposes
here that denial by statute without
any pleading in reply is sufficient De-
tween co-defendants, such denial
ought not to become operative before
service. Whiterv Patton, 81 Cal. ISL:
Clements W Davis, N Ind. s31. TO
hold otherwise or establish a different
practice, might cause litigants to suf-
fer great injustice. An answer to
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 judgmen.
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 a cause of action and seek judg-
ment against him, and if he does he
should not be required to watch the
court records as Guiling 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
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 supplements al
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, 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. Mitchell
~ p. 50, % New, we set aside the
action of the district court whereby
1t granted q plaintiff relief not de
manded in the complaint served upon
the defendant. That was pursuant t.
statute. but there ID no more reason
for holding Z defendant liable on q
| Judgment based on ~ cross-complaint
Tor pleading OF . -co-defendant without
l. service, than on one resting on a com
plant of q plaintiff which has not
been served. In neither ease should
the rights o. the parties be concluded
without ,serricesor AsWaiyer thereoI.,
It il said that service Of the answer
Of, the Washoe County Bark will u
presumed, if nscessaryit to support the
juAgmeRtsa' .fhs judgment roll and
the papeFsi IN the AEM casa were
introduced On the trial and arc
brought here in t..e statement on ap
I
and not upon presumptioAs, and the
khurdea spf astabliehisg restoppsls Is up
on the. defendant II any afmissfs:
OF alhda1ito u service was made II
should be among tAsse pspess. but mons
| appears and therefore IVA must con
cludes that The answer was not served
/" The return Of the Sheriff and recital
in the AGdfHeS Indicate tina. Gulling
was served swithl summons. !, aaA cths
findings state that in due time he p
peared and fled his answer to tn,
complaint Under these circumstan
| ces fnrther service will not be pre-
sumed Galpin " iHags, Is Wall; 366
!. Beyond that appellants !, answer II
the present case does not allege tn II
the answer o6 Washoe County Banl
was served upon Gulfing in the Other
suit and is defective in this vital re
spect. It's allegations follow the fact
4 disclosed by the record of the forme
i action which show no service. an,
4 it., states the conclusien< that by tn,
! fling of. the. former answer an issu'
! was raised against Lplling.
Numerous cases are cited by appe
liant halding that by going to trial O
new matter alleged in the answer will
out a reply thereto, reply is waive
: even in states where the statute pr
vides for one. If this be the rule o
, dinarily in actions between
plaintiff and defendant or wher
. by cross complaint new ma
) ter is alleged against cod
, PENDANT. and. the latter appea,
/ and introduces evidence in regard to
) the rule ought not to apply to cas-,
r like the present one where, the :;
1 defendant is in court for other pu
!. poses and the answer is in reply !
Z rthe complaint and does not state Il
; new facts as q cross-cOmplaint I
= cause Of action against the cO-defen