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

self. without becoming liable furtheF
This Is we'll illustrated by the finding
-oonclusion and direction OF the couy1
that Gulling have Judgment against
the Pollocks and Powell for tho q
amount due on his note and mortgcsH
II the space left for this in the.zijy.
ment has been nlled, or if the court
has made a decree of foreclosure IN
favor of Gulling, both would have been
void against the Pollocks and PowsIl
for lack of service as is the Judgment
against them based on the trustees
sale and it has been held that if ma
of the parties to a judgment is NOT
bound. the other is not. They hal
been served by the Savings Rank
with complaint or summons seeking
the foreclosure of the trust deed and a
filed a demurrer. For the purpose cr
that complaint and 20 the extent OF "a
demands they were in court or wee
bound, but judgment against then
for the amount or foreclosure Of the
Gulling note and mortgage, when thew
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 CT the
parties nc further than they presented
themselves or were served with pleAls
ings or process or waived service or
issues. If complaint and summons
on demand for one thousand dollars
is served upon defendant, a 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 far ,e
subject matter is concerned, it has
jurisdiction in any amount
The facts were quite different and
the principal involved distinguishable
in Naples ". Geller, / New, c3S.
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 iurisdic.
ton over the defendant. Stripped Of
dicta that decision property deter-
mined that the filing of an answer
to the complaint without service pre-
vents a 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 defendant seeking affirmative re-.
lief on new facts against a co-defend-
ant without service or an issue Gr
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 filed
| 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 are 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-
ceeding. These questions, however
under the view we have taken Of this
case are not deemed, necessary to S'.e
determined.
| The judgment and order of the dis
trict court are affirmed.
= .l@ Talbot, J.
L Concur:
.Norcross, J.
/ Dissent:
Fitzgerald, C. ].
Filed Nov. g.. 1905.
e 9.8 w. U. Douglass.
| Clerk.
BY ]. w. Legate,
| Deputy.