Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-22

| rested. IldL M3TLlu Gulll0S Ou0TSQ
and = submitted evidence and proof |
and thereupon rested ar that Henry |
! Ande : IN, Wash0e Coil- Bank AMI |
| "the defndants and EACH them, hay-
| ing submitted evidence End proofs IN |
| support of the issues made by them |
| in their answers, the 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 |
! HOn-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
I 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 judgment
| against the Pollocks and Powell for
| tue amount due on his note but not
| to a degree of foreclosure. The find
| ings recite that defendant G1lling
| was made a 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 ale
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,S00.00, estimated 60
be the amount due tue : armers' and
Mechanics Bank and notes held by
Washoe County 1ank against the
! Pollocks and Power for S., 10000 I'M
secured after the execution of the
mortgage to Gulling, constituted the
consideration expressed at $14,000.00
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 9, 1902 against
Washoe County Bank as grantee TO
fOreclOse his mortgage so executed
on the premises by the Po1locks and
Powell before they decided to defend
ant, and is now prosecuted by the rep
resentatives ;, of his estate. The de-
PENDANT pleads ~ way of estOppel,
the Judgment in the former action and
claims that by it Gulling3 was, and his
executors are barred. and sforeclOsed
! of all right to proceed against WashOe
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 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 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 were within
the issues as between s0olling ard
appellant, and il they were not,
) whether he waived the framing OF
issues 50 that. he became bound BY
the Decree The. facts stated In the
complaint Of Farmers and Mechanics
Savings Bank averilg the execution
Of the trust deed were not denied by
any of the partiess The statute. 1t
! least in. favor Of the plaintiff. RAISED
! denials Of the facts alleged In Gul-
ling's answer. These were In regard
to the execution and non-payment ct
His mortgage ana did net relate to
the trustees sale which took place
after his answer had been fled. and,
therefore, if any issue existed re-
garding this sale it must have been
founded on the answer Of the Washoe
County Bank. On ats Oehaif it -
urged that the answers Of Gulling
, ! and the Bank MADE q direct issue OF
!, his right to have the property said
Ito 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 sale for his only answer was
filed before the sale and before the
:, answer of the Washoe County Banl
: in which it was alleged, and did no
= Mention the name of the latter.
On behalf of appellant it is urget
: that the only pleadings provided or al
:. lowed by the Practice Act for the al
= legation of facts are a complaint b.
]. the plaintiff and an answer by a de
a PENDANT, and that in determining tn
- rights of co-defendants between then
:. selves an answer is the only pleadin
- permissible and that it's allegation
I, are deemed denied by statute, whe
= it states a cause of action against
co-defendant, the same as if it relate
y new matter against plaintiff. Fo
~ respondent different view is take
~ and it is claimed that under Rose
u Treadway, 4 New, 400, and 9th.
- cases cited, that ordinarily the
=. PENDANTS in an action are not as j
Nv tween themselves adversary partie
- that they become such only when OF
as files a pleading in the nature OF