Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-22

-
matter. which one defendant may al
lege against q codefendant and that
no answer or reply thereto is required
1t would still De q dangerous prece-
dent, which we would be reluctant to
establish, to hold that the statute de-
aies 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
7ffsed against a co-defendant by the
mere fling without service of an ans
werr 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 Guliing, and he having
fled no demurrer, answer or reply to
it, which would have been a waiver
of service, we feel constrained to held
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 pc
tween co-defendants, such denial
ught not to become operative before
-ervice. White v. Patton, 81 Cal. ISL;
dement's " Davis, N Ind, 631. TO
hold otherwise or establish a 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 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
denial in his behalf of any new mat
ter 1t alleged. 1t is different between
co-defendants. Usually their interests
are not adverse. except to the plain
tiff. and one defendant may not tx
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 Guiling could have
done for over four months after his
any of his co-defendants filed 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
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'-
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 v. Mitchell,
/ 70 p. SO, % New, We set aside the
action of the district court whereby
it granted q plaintiff relief not de-
manded in the complaint served upon
the defendant. That was pursuant to
statute, but there IL. no more reason
for holding . defendant, liable on a
Judgment based on a cross-complaint
or pleading Of co-defendant without
service, than on onesresting on com
plant, Of j q plaintiff which has not
beens served In neither case should
the rights of the parties be concluded
/ without service or q waiver thereof
It is said that services. of the answer
of the Washoe County Bank will he
presumed, ii necessary to support the
Judgment. The judgment roll and
the papers" III the hrst case were
Introduces soh the trial and are
brought hero in sS1e tstatement on ap.
peal. and the, tease rests, upon Them
land not upon prescriptions, and the
burden Of establishing estoppeT IS up
ON the defenAant! m any admissfos'
or affldavits Of servicemwas made II
should be among those, papers but none
appears and therefore We must con
clude that tho answer was not served
i The return of the Sheriff and recital
! in the findings indicate tina. Gulling
was served with summons, and the
findings state that in due time he p
peared and filed his answer to Il
complaint. Under these circumsta
/ ces further service will not be pr
sumed.,~ Ga2pia v. Page, 1S Wall, SO
Beyond that appellants answer
the present case does not ,allege tn II
the answer Of Washoe County Bank
was served upon Gulling in the other
suit and is defective in this vital he
= spect. Its allegations follow the fact'
disclosed by the record of the forme
action which show enc service an.
. it states the conclusion that by thu
, filing of the former answer an ISSUE
was raised against Gullfng.
Numerous cases are cited by appe
liant halding that by going to trial o
: new matter alleged in the answer will
: out a reply thereto, a reply Is waive
' even in states where the statute pr
: vides for one. If this be the rule o
. dinarily in actions between
! plaintiff and defendant or wher
Z by cross complaint new ma
s ter is alleged against a cod
q PENDANT, and the latter appeal
q and introduces evidence in regard to
8 the rule ought not to apply to cas-
# like the present one where the =
n defendant is in court for other pt
v. poses and the answer is in reply
r the complaint and does not state Il