Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-10

Washoe County Bank had succeeded
to the interest of plaintiff, thereupon
rested. That Martin Guliing ofered
and submitted evidence and pro0fs
and tt ereupon rested and that Henry
Ande. On, Washoe County Bank AMI
s'the defndants and each Of them, hav-
ing submitted evidence and proofs in
support of the issues made by them
in their answers, the case was SUBJ
mittef 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
be did not offer any in relation TO
other facts alleged in the answer cf
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 al the property
was conveyed to Washoe County Bank
clear of Cuttings mortgage, and that
tu0 ldltcI was tuIltlCu u d JuuS,
against the Pollocks and Powell for
the amount due on his note but not
to 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
vice upon him, or issue made that
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 SS,S00.00, estimated TO
be the amount due the 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 expressed at $14,0OO.00
| 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 Dy 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 Washoe
County Bank. The district court was
| OF the opinion that in the earlier suit
! 1t did not have Jurisdiction to make
! the judgment effective in quieting the
| title of appellant against Gulling,
| and it has now entered q decree of
| foreclosure and sale to satisfy his
| mortgage from which this appeal is
| taken.
The important questions under the
| record and elaborate and interesting
briefs are whether the matters 3
! lating to the trustees sale determin-
ed in the former action were within
the issues as between Gulling and
appellant, and II they were not,
whether he waived the framing of
issues SO that he became bound BY
! the decree. The fActA stated In the
| complaint Of Farmers and Mechanics
Savings Bank avering the execution
Of the trust deed were not denied BY
any Of the parties. The statute, 1T
least in favor Of the plaintiff. raissd
denials Of the facts alleged in Gull
ling's answer. These we're In regard
to the execution and non-payment 81
his mortgage and did not relate to
the trustees sale which took place
after his answer had been fled. and
therefore, II any issue existed rs
garding this sale it must have been
founded on the answer of the Washes
County Bank. On Is oehalf it u
urged that the answers Of GullinS
and the Bank made . direct issue Of
bis right to have the property said
to pay his debts, but this is dealing
with conclusions and not with fActi
upon which issues are based. Gullin;
did not raise any issue regarding tn.
trustees sale for his only answer wa.
filed before the sale snd before ID!
answer OF the Washoe. County HAM
4 Ii which it was alleged, and did no
mention the name Of the latter.
q On behalf OF appellant 1t ID urge,
II that the only pleAdings provided or n
lowed by the Practice Act for the q
legation, ok facts are Z complaint b
!, the plaintiff and an ApSWHf by d.