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

rested. That Martin GulIing offered
and submitted evidence and proofs
and thefeupon rested and that Henry
Ande'. On, 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 SUBJ
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 Ut
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 -, the property
was conveyed to Washoe County Bank
clear of Cuttings mortgage, and that
the latter was entitled to judgment
against the Pollocks and Powell for
Tic dluOuuI uuC Oh Ills mute Uut uOt
to 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 net
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,
or that 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 $8,S00.00, estimated 60
be the amount due tue armers' and
Mechanics Bank and notes held by
Washoe County ,ank against the
Pollocks and Powe4. for $4,000 I'M
secured after the execution of the
mortgage to Gulling, constituted the
consideration expressed at S14,000.00
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 Pcllocks and
Powell to Gulling On his note and
mortgage remains untitled. The case
J now before the Court was brought by
Martin Gulling on June 9, 1902 against
Washoe County Bank as grantee to
foreclOse his mortgage SO executed
| on the premises by the Pollocks ana
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 it Gulling was, and his
executors are barred and foreclosed
of all right to proceed against Washo.
! County Bank. The district court was
| Of the opinion that in the earlier suit
it did not have jurisdiction to make
the judgment effective in Quieting the
! title Of appellant against Gulling,
and it has now entered . decree Of
foreclosure and sale to satisfy his
mortgage, from which this appeal 10
| taken.
The important questions under the
record and elaborate and interesting
briefs are whether the matters 3
| lating to the trustees sale determin-
ed in the former action were within
| the issues as between Gulling and
| appellant, and If they were not,
whether he waived the framing of
| issues SO that he became bound by
| the decree. The facts stated in the
complaint of Farmers and Mechanics
Savings Bank avering the execution
Of the trust deed were not denied by
| any of the parties. The statute, 1T
least in favor Of the plaintiff, rails sd
| denials Of the facts alleged in Gul.
| lings answer. These were in regard
to the execution and non-payment Ct
his mortgage and did not relate tc
the trustees sale which took place
| after his answer had been filed. and
therefore, if any issue existed rs
! garding this sale it must have been
| founded on the answer of the Washes
County Bank. On As behalf it u
urged that the answers Of Gullins
| and the Bank made q direct issue o.
his right to have the property said
to pay his debts, burt this is dealing
with conclusions and not with fact
upon which issues are based. Gullin;
did not raise any issue regarding tn.
trustees sale for his only answer wa
filed before the sale and before tn,
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 a
lowed by the Practice Act Tor the. al
legation Of facts are q complaint b
PENDANT, and that in determining tn
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