Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-15

no. answer oesFepIy thereto -is. roQuired |
It would still pc = dangerous prece-
dens.%wHich wer would be eeluctant to
'estabDss. to hold that the statute de-
MES for, q. codefendant 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 co-defendant by the
mere fling without service of an ans
wers 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 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 &C.
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 different
practice. might cause litigants to suf-
fer great injustice. An answer to
a complaint ought to be served upon
tne plaintiff but if it is not he NAV
be expecting it. or to secure a de-
fault, he could not obtain judgment
without being aware of it, and would
not be likely to go to trial without
being prepared to meet the statutory
denial in his behalf of any new mat
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 *
pect that another defendant will set
up a 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. TN
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
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 bv Gulling'-
answer to the original complaint, and
without service upon or waiver OF
service by him, valid judgment bas-
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 " Mitchell.
10 P..350, % New, we set aside the
action of the district court whereby
it granted Z plaintiff relief not de-
] manded in the complaint served upon
the defendant. That was pursuant to
statute. but there ID no more reason
for holding . defendant liable. on a
judgment based on. 4 cross complaint
or pleading q q codefendant without
service, than on one resting on a COM
plant OF Q plaintiff which has not
| been, served. In neither case should
the rights q the parties be concluded
| without service or q waiver thereof.
! il said that service Of the answer
/ lot the WasAoes County Bank will BE
presumed, II ,necessaryCt to- support the
Judgment, The Judgment roll and
the papers" tn the Afst case were
Introduced o. the TRIAL and are
brought hers In 80 1ka&ement on ap-
peai. land 'thsy eaAearests supons thesn
and not oVpoA, .pTesrnptions, and the
burden Of establishin9 estoppe1 10 up
on tho defendant , ff sAAy fa6mfSsfo.f
or : aA1davi&a b sbertice swasp made at