Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-09

matter which one defendant may al
lege against q co-defendant and that
no answer or reply thereto is required
it would still ne . dangerous preca-
dent, which we would be reluctant to
establish, to hold that the statute de-
MES for co-defendant facts not 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-defendant 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 Gulling, and he having
filed no demurrer, answer or reply to
it, which would have been 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 De
tween co-defendants, such denial
ought not to become operative before
service. White " Patton, 81 Cal ISL:
Clements v. Davis, NJ Ind, 631 To
hold otherwise or establish different
practice, might cause litigants 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, ne could not obtain judgment
without being aware of it, and would
not be likely to go to trial without
tO f1n 70 INT
denial in his behalf of any new mat
ter it alleged. It 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 cause Of action and seek judg-
ment against him, and if he does he
should not be required to watch the
court records as Gulling could have
| 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.
| II 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 Gulling's
answer to the original complaint, and
without service upon or waiver OF
service by him, valid judgment has.
ed upon facts occurring after he hai
been served with the original COM
plant and filed his answer thereto
could not have been taken by default
against him. In Mitchess " Mitchell
70 P. SO, % New, we set aside the
action of the district court whereby
! 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 a defendant liable on a
judgment based on q cross-cOmplaint
or pleading of co-defendant without
service, than on one resting on a com
plant of e plaintiff which has not
been served. In neither case should
the rights of the parties be conclud 81
| without service or waiver Thereon.
1t is said that service of the answer
of the Washoe County Bank will Ne
presumed, if necessary to support the
judgment. 'The judgment roll and
the papers in the first case were
introduced on the trial and are
brought here in ,--e statement on ap
peal, and the case rests upon then
and not upon presumptions. and ths
burden of establishing estoppe1 is up
| on the defendant Ii any admiss1iee:.,.
or affidavit of service was made II
should be among those pa pars rut none
appears and therefore we must cor
clude that the answer was not served
/ The return of the Sheriff and recita
in the findings indicate tha. Gullins
was served with summons, and tbs
findings state that in due time he p
peared and filed his answer to the
complaint Under these circumstan
|. ces further service will net be pre-
sumed Galpin v. Page, Is Wall, $3.50
Beyond that appellants answer il
the present case does not allege thl
the answer of Washoe County Banl
!, was served upon Guiling in the otnel
suit and is defective in this vital he
, spect. Its allegations follow the fact
, disclosed by the record of the forme
J action which show no service. an
2 it states the conclusion that by tn
< fling of the former answer an issu
t was raised against Gulllng.
Numerous cases are cited by apps
liant halding that by going to trial o
/ new matter alleged in the answer wit
/ cut reply thereto, a reply Is waive
v even in states where the statute pr
) vides for one.e If this be the rule Q
g dinariiy in actions between
q plaintiff and defendant or whel
z by cross complaint new md
s ter is alleged against cod
Il PENDANT, and the latter appear
a and introduces evidence in regard to
IS the rule ought not to apply to cas-
n like the present one where the .
n defendant is in court fer other pt
v | noses and the answer is in reply