Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-23

-Washoe County Bank had succeeded
to the interest of plaintiff, thereupon
rested. That Martin Cunning offered.
and submitted evidence and proof
and thereupon rested and: that enry
Ande,- IN, Washoe County Bank ami
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 sub
mitted to the court" The fair in
ference. from the language and from
the fact that he was first to submit
proofs is that he 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 all the interest IA the property
was conveyed to Washoe County Bank
clear of Cuttings mortgage, and that
the latter was entitled to a judgment
against the Pollocks and Powell for
tue amount due on mis- note but not
to a 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 ale
| 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 sS,S0000, estimated 60
| be the amount due tue armers' and
1 Mechanics Bank and notes held by
| Washoe County .ank against the
Pollocks and Powe41 for $4,000 un-
| secured after the execution of the
/, mortgage to Gulling, constituted the
consideration expressed at $14,000.00
| 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
| Tync
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-
PENDANT pleads oy way of estoppel
/ the judgment IN the former action and
claims that by 1t Gulling was, and his
executors are barred and foreclosed
of all right to proceed against Washes
County Bank. The district court was
of the opinion thatrin the earlier suit
it did not have, jurisdiction to make
! the judgment effective in. quieting the
ttitle of appellant against Gulling,
and it has now entered . decree. OF
foreclosure and sale to satisfy his
mortgage, from which thia appeal ID
taken,
The important questions under the
record and elaborate and Interesting
briefs are whether. the matters -
lating to the trustees' ekie determin.
led il the former action wers within
the issues as between sGulling and
appellant, and IL they were p0t,
whether he waived the framing OF
Issues so that he became bound sbJ
the decree. The, facta stated IN the
complaint Of Farmers and Mechanics
Savings Bank averins the execution
'lcOf the trust deed were not denied by
any of the parties. The statute at
least in favor of the plaintiff. raised
j denials OF the facts alleged IL Guf
4 ling's answer. These were in regard
to the execution and, Ron-payment lci
his mortgage and did not relate te
the trustees sale which touk place
after his answer had been fled. and
therefore, if; any issue existed re-
garding this sale it must have been
founded on the answer Of the Washoe
County Bank. On 4ts behalf It rs
urged that the answers Of sGullihg
and the Bank made q direct issue OF
his right to have the property said
to pay his debts, but this is dealing
with conclusions and not with facti
upon which issues are based Gullins
did not raise any issue regarding the
trustees sale for his only answer was
filed before the sale and before thu
answer Of the Washoe County Banl
in which it'was alleged, and did no
mention the name of the latter.
On behalf of appellant it is urge,
that the only pleadings provided or 81
lowed by the Practice Act for the al
legation of facts are a complaint b.
, the plaintiff and an answer by a do
fendant, and that in determining tn
!, rights of co-defendants between then
selves an answer is the only pleadin
, permissible and that its allegation
are deemed denied by statute, whe
it states a cause of action against
, co-defendant, the same as if it relate
I new matter against plaintiff. Fc
respondent different view is take
!, Il and 1t is claimed that under Rose
Treadway, 4 New, AGO, and 9th:
{ cases cited, that ordinarily the
!. PENDANTS in an action are not as .
u 1 fvryr %I,<vr ,co1x ~ -