Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-14

sell, without becoming liable further
This IL well illustrated by the finding
conclusion and direction of the court
that Gulling have Judgment againt
the Pollocks and POWELL for the,
amount due on his note and mortgage.
II the space left, for this In the iuialS
ment has been nlled, or IL the court
has made q decree OF foreclosure II
favor Of Gulling, both would have Ueens
void against the PDllocks and PoweIl
for lack of service as is the Judgment
against them based on the trustees
sale and 1t has been held that if me
of the parties to judgment is not
bound, the other is not. They hal
been served by the Savings Bank
with complaint or summons seeking
the foreclosure of the trust deed and
filed demurrer. For the purpose OF
that complaint and 20 the extent o. -
demands they were in court or were
bound, but judgment against then
for the amount or foreclosure of the
Gulling note and mortgage, when they
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 of, the
parties no further than they presented
themselves or were served with plead
ings or process or waived service or
issues. If complaint and summons
on demand for one thousand dollars
is served upon a defendant, judg-
mept 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 as
subject matter is concerned, it has
jurisdiction in any amount
The facts were quite different and
the principal involved distinguishable
n Naples v, Geller, ] New, C3S.
rnele 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 jurisdic.
| 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 Or
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
i equitable choss-bills If the latter,
whether or not. under the practice
and further, IL 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
lease are not deemed necessary to be
/ determined.
The judgment and order Of the dis-
trict court are affirmed.
4 Z Concur.
/ -Norcruss, ].
Dissent 1tiiA "f
/ Fitzgerald; C. n. 81 p. N--s.s
IS Flied Nov. %. 1906.
bases 4: W. y. Douglass,
|,By j, ~. Lessts,
- sed Deputy.
4