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

self. without becoming liable furthes
This IL well illustrated by the finding !.
conclusion and direction of the cous
that. Cutting have judgment agSInft
the Pollocks and Powell for the
amounts due on hts note and mortgage.
II the space left for this in the judy
ment has been nlled. or il the court
has made B decree OF FORECLOSURES N
favor of Guliing, both would have been
void against the Pollocks and Powell
for lack OF service as is the judgment
against them based on the trustees
sale and it has been held that il one
of the parties to Judgment is not
bound. the other is not. They hai
been served by the Savings Bank
with complaint or summons seeking
the foreclosure of the trust deed and
filed demurrer. For the purpose OF
that complaint and 20 the extent OF -
demands they we're in court or were
bound, but judgment against then
for the amount or foreclosure of the
GuIling note and mortgage, when they
had not been served with pleading or
process regarding these would have
been void. The court has Jurisdiction
of the subject matter of all questions
involved in this litigation, but OF the
parties no further than they presented
themselves or were served with neai-
ings or process or waived service Or
issues. If a complaint and summons
on demand for one thousand dollars
is served upon a defendant, judy
ment for ten thousand would be void.
because the district court would have
jurisdiction over him to the extent
of only one thousand, while as Tar az
subject matter is concerned, 1t has
Fur'sdictlon in any amount. ~.
The facts we're quite different and
the principal involved distinguishable
n Naples v. Geller, New, c36.
There an answer which did not de.
mand judgment upon new matter was
filed to the complaint but not served.
The question was not between code
PENDANTS. The court said that the
filing of the answer gave it jurisdic.
ton over the defendant Stripped Of
dicta that decision property dete--
mined that the fling of an answer
to the complaint without service pre-
vents judgment for the plaintiff
by default. While here we hold that
property rights cannot be lost or ad-
Indicated upon an answer or pleading
by a defendant seeking Affirmative re.
lief on new facts against a co-defend-
ant without. service or an issue Or
waiver
Questions are, presented upon the
record in this case whether or not,
under the provisions of the practice
act of this State. the answers fled
by Martin Gulling and the Washoe
County Bank in the suit instituted by
the Farmers and Mechanics Savings
Bank, in SO far as they sought affir-
native relief against co-defendants,
are answers as contemplated by our
statute, or whether they are in fact
equitable cross-bills. If the latter.
whether or not, under the practice
act, they ere permissible pleadings,
and further. if permissible pleadings,
whether or not the dismissal Of the
plaintiffs complaint would not re-
Quire the dismissal Of the entire pro-
ceedins. These questions, howeves.
under the view We have taken Of this
case are not deemed necessary to be
determined.
The judgment and order Of the dis
trict court are affirmed. -
I Concur:
Norcross, J. .
Dissent |
Fitzgerald, &C. j..
Filed NOV. .. sq1soE. Al
Ssh ..,,se W. e. Douglass.
By J. ". Lsxase,
- Deputy. iL e-3t