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

: 1899 0&S8100E u CC-0S1G808Ut 8UQ L02l
no answer or repl thereto is required
il would still We . dangerous prece
Gent. sh we world be reluctant to-
establish. to hold that the statute de-
lies for q cC-defendant facts not al
legged against him but stated in the
! answer Of anc Their defendant to the
| complaint, or hat IN issue would ne
aa5snst a ee-defendanl by. the
mere filing without service of an ans
yer containing new r1atter alleged
against the comp amt of, the plaintiff.
The answer of Warhle County Bank
| m the former suit not having been
! served upon Cutting. and he having
| lied no demurrer. answer or reply to
It, which would nave been a waiver
!; ( 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
fany pleading in reply is sufficient oe-
| tween co-defendants, such denial
ought not to beeams operative before
service. White v. Patton. 81 Cal. Isl ::
/ Clements v. Dav:s..s<5 Ind. e3l. To
| tsold otherwise or establish a different
6ractice. might cause lstigants to suf
fer great injustice. An answer to
a complaint ought tc be served upon
the plaintiff but If it is not he nnav
be expecting it, or to secure de-
fault, he could not obtain Judgment
without being aware of it, and would
not be likely to go to trial without
i being prepared to meet the statutory
denial in his behalf of any new mat
ter it alleged. It is different between
| co-defendants. Usually their interests
| ny Old 40 i, Ios
tiff, and one defendant may not *
pect that another. defendant will set
i up a cause Of action and seek a judg-
) ment against him, and if he does he
should not be euuired to watch the
court records as Gu,lips could have
done for over four months after his
answer was filed to ascertain whether
any of his co-defendants filed cross
complaint against him, in order thai
answer was filed, to ascertain whether
he might be prepared to meet it. I'm
J til he is warned by servide of the
pleading and demand or valves ser
, vice or issue. he ought not to be
bound by any judgment based upon it
If TIE Farmers and Mechanics Sav
|, ings Bank instead of the Washoe
J 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 h. "ulling
, 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. I'm Mitchess " Mitchell
} 70 p so, % New, we set aside the
action of the district court whereby
, it granted q plaintiff relief not d =
} manded in the complaint served upor
the defendant. That was pursuant t.
, statute, but there IL No more reason
, for holding defendant liable on .
Judgment based on q cross-complaint
ior pleading a. . codefendant withou,
service, than On one resting on com
} plant Of 9 plaintiff whicha iAs NOD
been served. In neither ease should
} the rights Of the parties be concluded
: without service or . waiver thereof.
II ID said that service a. tho ansWel
: Iof the Washoe County Bank viii y
i presumed, II necessary TO support me
judgment. sThe Judgment ron and
the papers.:'saiA the aAFsta ease we-e
{ 1introdnced O. tbs trial landsu ara
Z brought. here II. 80. statement o. ~
y peal, and the ease. rests upon then
81 and. not upoA presumptions, and thu
burden Of .estAhlishins eat0ppel 10 up
/ on The defendant M NEUTRALITY-SUSPICIOUS.
. On AMdayM II seuiee tyassa made u
Il should be among those pebers but nom
. 6ppeary ana therefore sNs must cor
1 clude that The anReerswalssn not sefved
The return of the 9AeriA end recftA
! lin the. And&AR aindica1a sthAl Gullias
Twas served With dNHpmpnD, eenlhitAt
|. findings state that in due time he D
: peared and Aled his answer to tn
/ complaint AUndeFrt Aeee etrcumstAu
81 ces further service yillsApt be pr
"a spNe6 Galpi4sA FAgNs14 WaA. c36l
z <beycad thSta sppelants answer i
( the preseM case doea not allege- tn =
fthe answer q W6nlne CouuE yna1l