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

matter which ono defendant may al
lege against .co-defendant 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-
MES for a 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
raised against a co-defendant by the
mere filing without service of an ans
wer 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
filed no demurrer, answer or reply to
it, which would have been a waiver
of 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
any pleading in reply is sufficient De-
tween co-defendants, such denial
ought not to become operative before
service. White " Patton, 81 Cal ISL;
Clements ". Davis, NJ Ind, 631 To
hold otherwise or establish different
practice, might cause litigants to suf-
fer great injustice An answer to
complaint ought to be served upon
the plaintiff but if it is not he NAV
be expecting it. or to secure a de-
fault, he could not obtain Judgment
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 it alleged. 1t is different between
co-defendants. Usually their interests
are not adverse, except to the plain
tiff, and one defendant may not *
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 Gulling could have
done for over four months after his
answer was filed to ascertain whether
any of his co-defendants filed a cross
complaint against him, in order that
answer was filed, to ascertain whether
he might be prepared to meet it. Tn
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 Cuttings
| 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 " Mitchell.
70 P. so, % New, we set aside the
action of the district court whereby
| it granted plaintiff relief not de-
! manded in the complaint served upon
the defendant. That was pursuant to
statute, but there is no more reason
for holding q defendant liable on
judgment based on q cross-complaint
or pleading Of codefendant without
| service, than on one resting on a COM
plant of plaintiff which has not
been served. In neither case should
| the rights of the parties be concluded
without service or . waiver thereof
| It is said that service Of the answer
Of the Washoe County Bank will re
presumed, II necessary to support the
judgment. THE Judgment roll and
the papers" in the first case were
introduced on the trial and are
| brought here in 10 statement on ap-
neal, and the case rests upon them
and not upon presumptions, and the
burden of establishing estoppel is up
on the defendant. II any admissfcc..::
| on afiidavit Of service was made IT
should be among those papers but none
appears and therefore we must con
clude that the answer was not served.
The return Of the Sheriff and recital
in the findings Indicate tina. Gulliag
was served with summons. and the
findings state that in due time he D.
peared ana filed his answer to the
complaint. Under these circumstAn-
ces further service win not be pre-
sumed. Galpin v..Paee. l6 Wall, 36e
Beyond that appellants answer in
the present case does not allege tn 1t
the answer Of Washoe County Bank
was served upon Guliing in the other
suit and ID defective In this vital re.
spect tt allegations follow the facts
disclosed by the record of the formeI
action which show no service, and
lit states the conclusion, that by the
sfdEng OF the former answer an issue
! wAa raised sa9hinst Gulling
Numerous cases are cited by appel
liant halding that by going to trial OF
: new matter alleged Ia the answer with
out q reply thereto. 4 reply IL waive
/ even. in states where the statute pro