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

matter which ono defendant may al
lege against q cO-defendant and that
/ no answer or reply thereto is required
| it would still Oe q dangerous preca-
dent, which we would be reluctant to
establish. to hold that the statute de-
MES for a 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 filing 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 a waiver
of service, we feel constrained to hold
that 1t raised no issue against him,
and if We cOncede for the purposes
here that denial by statute without
any pleading in reply is sufficient be
tween co-defendants, such denial
ought not to become operative before
service. White v. Patton, 81 Cal ISL;
Clements v. Davis, ~ Ind, 631. To
hold otherwise or establish a different
practice, might cause li,igants to suf-
fer 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 judgmen.
without being aware of it, and would
not be likely to go to trial without
being prepared to meet the statutory
n tol in hOI -
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 Ak
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.
| If the Farmers and Mechanics Saw
| 'ngs Bank instead of the Washoe
! County Bank had bought the property
\ at the trustees sale and relied upon
is purchase, necessarily it would have
pleaded the fact by supplemental
complaint, and they would not have
been considered denied bv Gulling'-
answer to the original complaint, and
without service upon or waiver OF
service by him, a valid judgment has
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 v. Mitchell
70 p. SO. % New, we set aside the
action of the district court whereby
i it granted a plaintiff relief not IL
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 q
Judgment based on q cross-complaint
or pleading Of codefendant without
service. than on one resting on q com
plant OF a plaintiff which has not
been served In neither case should
the rights Of the parties be concluded
1
It is said that service Of the answer
of the Washoe County Bank will re
presumed, If necessary to support the
judgment. The Judgment roll and
the papers in the Arst case were
brought here in re statement on ap
peal. and the case rests upon them
and not upon presumptions. and the
burden of establishing estoppel Is up
on tho defendant. II any admissfo:'
on affidavit of service was made II
should be among those papers but none
appears and therefore We must con
clude that the answer was not served
Il The return of the Sheriff and recital
in the findings indicate thai Gulliug
was served with summons. and the
findings state that in due time he p
peared and filed his answer to the
complaint. Under these circumstan
ces further service will not be pre-
sumed Galpin v. Page, Is Wall, $50
Beyond that appellants answer il
the present case does not allege tn Il
the answer Of Washoe County Ban1
, was served upon Gulling in the othel
j suit and is detective in this vital lie
. spect It's allegations follow the fact,
disclosed by the record of the forme
. action which show no service, an.
} it states the conclusion that by tn
( fling of the former answer an issu,
was raised against tsulling.
Numerous cases are cited by appe
l liant halding that BY going to trial o
/ new matter alleged in the answer viii
Il out q reply thereto, reply Is waive
2 even in states where the statute prt
vides for one. II this be the rule o
. l-dinarily in actions between
q fpIAinti6 and defendant or wher
{ by cross complaint new ma
i ter IL alleged axainst = cod
d PENDANT, and the latter appear
q and introduces evidence in regard to
D the rule ought not to apply to cas-
" like the present one where the {,
a defendant is in court for other: pu
VI poses and the answer Il 10 roply
- - = a - a