Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-17


to the interest Of plaintiff, therenpon
rested. That Martin Guliing offered
and submitted evidence and proofS
and therc1'pon rested and that henry
Ande YashOe County Bank AMI
the def-zsnts and each Ct them, hav-
ing sunri..tted evidence and proofs in
support of the issues made by them
in their answers. tie case was sub
mitted to the court" The fair in
ference from the language and from
the fact that he was first to submit
proofs is that he introduced evidence
to support the allegations of his ans
wer which averred the execution and
non-payment of his mortgage, but that
he did not offer any in relation TO
other facts alleged in the answer Of
Washoe County Bank. The findings
and decree in that action disposed Of
the claims of these other defendants
and found and declared that the sale
and deed made by the trustees was in
accordance with the terms of the
trust deed and that by such sale and
deed all the interest - the property
was conveyed to Washoe County Bank
clear Of Cuttings mortgage, and that
the latter was, entitled to a Judgment
against the PollockS and Powell for
the amount due on mis- note but not
to a degree of foreclosure. The find
ings recite that defendant Gulling
was made party TO the action and
was duly served with process therein,
and in due time filed his answer to
plaintiffs complaint, but it does not
appear that there was any other SER
~ A \ ,ok
rendered him liable beyond the allie
cations and demands of the complaint,
or that would cut off his right by reason
of the sale by the trustees which did
not take place until after he had filed
his answer. The court found in both
actions that -S8,S0000, estimated 90
be the amount due tue armers' and
Mechanics Bank and notes held by
Washoe County .ank against the
Pollocks and Power. for $4,000 I'M
secured after the execution of the
mortgage to Gulling, constituted the
consideration expresseu at $14,000.eD
for the deed from them to Washoe
County Bank, and that the property
was worth about that sum at the date
of the trustees sale anu the time of
the trial.
A blank space in the decree in the
first action for Judgment in the
amount owing by the Pollocks and
Powell to Gulling on his note and
mortgage remains untitled. The case
,, now before the Court was brought by
Martin Gulling on June 8, 1902 against
Washoe County Bank as grantee to
foreclose his mortgage so executed
on the premises by the Pollocks and
Powell before they decided to defend
ant, and is now prosecuted by the rep
resentatives of his estate. The de-
PENDANT pleads Jy way of estOppel.
the judgment in the former action and
claims that by it Gulling was, and his
executors are barred and foreclosed
of all right to proceed against Wash0e
County Bank. The district court was
of the opinion that in the earlier suit
it did not have Jurisdiction to make
the judgment effective in quieting tho
title of appellant against Gulling,
and it has now entered q decree Of
foreclosure and sale to satisfy his
mortgage. from which this appeal 10
taken.
The important questions under the
record and elaborate and interesting
briefs are whether the matters =
lating to the trustees sale determin-
ed In the former action wore within
the issues as between dulling and
appellant, and il they were not,
whether he waived the framing Of
issues SO that he became bound BY
the decree. The facts stated In the
complaint of Farmers and Mechanics
Savings Bank avering the execution
Of the trust deed we're mot denied by
any of the parties. The statute, 1T
least in favor of the plaintiff, rails Sd
denials Of the facts alleged in Gal
ling's answer. These were in regard
to the execution and non payment ct
his. mortgage and did not relate to
the trustees sale which took place
after his answer had been filed. and,
therefore, if any issue existed re-
garding this sale it must have been
founded on the answer Of the Washoe
County Bank. Tn - OehAlf it -
urged that the answers Of Gulling
and the Bank made direct issue OF
his right to have the property said
to pay his debts, but this is dealing
with conclusions and not with facts
upon which issues are based. Gullina
| did not raise any issue regarding the
trustees safe IOr MS only 0u3Wer WAS
filed before the sale and before the
answer Of the Washoe County Bank
in which it was alleged, and did no
mention the name OF the latter.
On behalf Of appellant it is urged
that the only pleadings provided Or II
lowed by the Practice Act for the al
legation OF facts are complaint b.
the plaintiff and an answer by . de
PENDANT, and that in determining thu
rights Of co-defendants between then
selves an answer is the only pleading
permissible and that its allegation
are deemed denied by statute whe1
it states q cause Of acfion against
co-defendant, the same as II it relate
new matter against q plaintiff. Fo
respondent q different view is take
and it is claimed that under Rose !,
Treadway, New, 400, and otha
cases cited, that ordinarily the d,
PENDANTS in an action are not a. .,
tween themselves adversary partie,
|, / that they become such only when on