Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-21

sell. without becoming liable furthW y
TINS 10 well illustrated by the nn6Mos
conclusion and direction of thsscoun
that Gulling have Judgment againse
the Pollocks and Powell for the
amount due on his note and mortgagA,s
II the space left for this in the =.
ment has been nlled, or if the court
has made decree of foreclosure IN
favor OF Gulling, both would have beeQ
void against the Policies and Powell
for lack of service as is the Judgment
against then. based on the trustees
sale and it has been held that if one
OF the parties to judgment is not
bound, the other is not. They hat
been served by the Savings Bank !
with complaint or summons seeking {,
the foreclosure of the trust deed and.
filed demurrer. For the purpose at
that complaint and 20 the extent o. II
demands they were in court or were
bound, but Judgment against then q
for the amount or foreclosure of the
GIlling note and mortgage, when they
had not been served with pleading or
process regarding these would have
been void. The court has jurisdicSSa
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 pleai.
ingss or process or waived service Or
issues. If a complaint and summons
on demand for one thousand dollars
is served upon a defendant. judg-.'
ment 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
in Naples v. Geller, New, C3S.
There 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 dete--
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 a defendant seeking affirmative re.
lief on new facts against a co-defend-
| ant without service or an issue sr
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 af1ir-
native relief against co-defendants,
are answers as contemplated by our
statute, or whether they are in fact
equitable cross-bills. If the latter,
/ whether or not, under the practice
act, they are permissible pleadings,
and further, If permissible pleadings,
whether or not the dismissal Of. the
plaintiffs complaint would not ~
quire the dismissal of the entire pro-
ceedihg. These questions, 'however.
under the view We have taken Of this
case are not deemed necessary to be
| determined ~
/ The judgment and order Of the dis
trict court are affirmed.
I Concur:ae,. eve
r Norcroes, ].
/ Dissent:
Fitzgerald, c. J..
f. Filed Nov 20. 1896.
I w. q. Douglass, t.
ana, ~ ,aEvsra ~, clerk. p.
By J. ". Legate, "a,
Deputy.