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

matter which one defendant may al
Ilege against . codefendant and that
i-no anxMer or reply theretD.is~reQuired
| 1t would still ne . dangerous prece-
dent, which we would. be reluctant to
establish, to hold that the statute de-
MES for a co-defendant facts NJ. al
LEGGED against him but stated in the
answer of another defendant to the
complaint, or that an issue would ne
raised against a co-defendanr by the
mere fling without service of an ans
wer containing new matter alleged
against the complaint of the plaintiff
The answer of Washoe County Bank
| in the former suit not having been
served upon GulIing, and he having
| filed no demurrer, answer or reply to
] it, which would have been "a waiver
!; of service, we feel constrained to hold
that it raised no issue against him,
/ and If we concede for the purposes,
| here that denial by statute without
| any pleading in reply is sufficient nc
tween co-defendants, such denial
ought not to become operative before
service. White " Patton, 81 Cal. ISL :
Clements v. Davis, ~ Ind 631. 10
hold otherwise or establish differeat
practice, might cause htigants to suf-
fer a 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 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 a cause of action and seek judg-
ment against him, and if he does ne
! should not be required to watch the
court records as Gulling could have
4 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 supplemental
complaint, and they would not have
been considered denied by Cuttings
answer to the original complaint, and
without service upon or waiver OF
service by him, 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 " Mitchell,
i 70 P.if50, % Nev.,fwe set aside the
action of the district court whereby
J, it granted q plaintiff relief not d.
manded In the complaint served upon
the defendant. That was pursuant to
statute, BUT; there is no more reason
for holding Q defendant liable on a
Judgment based ON q. cross complaint
Tor pleading of q co-defendant without
service, than on one resting on 4 COM
plant Of = plaintiff which has. not
been served. In neither case should
the rights Of the parties BE concluded
without service or q waiver thereof .
!, It, islsaid that aervioeoof the answer
tof the, Washoe Countyr Bank will be
fpresumed, IL necessary to support the
Judgment. Tho Judgment ron and
the papers, inEi the first. case were
fntroduced IN etheo trial Il and are
brought heres IN II rs. as statement on aP,
{ pea. srd re sass resLs upon t9em
burden of establishing estoppeI Ii up
ton the defendant-If3 any admission
ionl afadagit Of seryice was made It
should be am6nE those papers but none
4 appears and thereSorS wef must con
Glide that thAoahsNer was not served.
i The return Of the, Sheriff and recital
in the. findings indicate thai Gulling
was served with summons, and the
findings state that in due tfpe he p
peared and fled his answer to til
complaint. Under these circumstar
II ces further service will not be pr,
sumed aGalpin v. Page Is Wall, 36'
i Beyond that appellants answer /
the present case does not allege tn 1t
the answer of Washoe County Bank
was served upon Gulling in the other
suit. and is defective in this vital re-
!, spect It's allegations follow the facts
disclosed by the record of the former
action which show no service, and
}. it states the conclusion. that by the
{ filing of the former answer an issue
t was raised against Iullfng..
Numerous cases are cited by appel
| liant halding that by going to trial or
: new matter alleged in the answer with
: out reply thereto, a reply is waive.
' even in states where the statute pro
; vides for one. If this be the rule or
e dinarily in actions between 3
l lplaintiff and defendant or where
3 by cross complaint new mat
8 ter is alleged against a code
q PENDANT, and the latter appear
a and introduces evidence in regard to
s the rule ought not to apply to case
r like the present one where the sf
n defendant is in court for other pul
" poses and the answer is in reply I
r the complaint and does not state tn
e. new facts as a cross-cOmplaint o
e. cause of action against the co-defent
g. id 10, 1,~y h sS1