Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-20

loS0 against CO-0eI0n000C ana that
no answer or reply thereto Is required
| 1t would still Oe . dangerous prece-
dent. which we would be reluctant to
establish. to hold that the statute de-
MES for a co-defendaht 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 fling 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 Gulling, and he having
| filed no demurrer, answer or reply to
lit, 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 v. Patton. 81 Cal. Isl;
Clements v. Davis, N Ind, 63l. TO
| hold otherwise or establish different
practice, might cause litigants to suf-
fer great injustice. An answer to
a complaint ought to be served upon
| the plaintiff but If it is not he NAV
| 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
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 Ak
| pect that another defendant will set
up cause of action and seek judg-
ment against him, and if he does ne
| should not be required to watch the
court records as Gulling could have
kdOne for over four months after his
answer was filed to ascertain whether
any of his co-defendants filed q cross
complaint against him, in order that
answer was filed, to ascertain whether
he might be prepared to meet it. I'm
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 fled his answer thereto,
could not have been taken by default
against him. In Mitchess v. Mitchell,
70 p. so, % New, we set aside the
action of the district court whereby
it granted Q plaintiff relief not de-
manded in the complaint served upon
the defendant. That was pursuant to
statute, but there il no more reason
for holding . defendant liable on. a
judgment based on p cross-complaint
or pleading Of co-(efendant without
service, than on one resting on COM
plant Of . plaintiff which has not
been served. In neither case should
the rights q the parties be concluded
without service or . waiver thereof.
It ID said that service Of the answer
Of the Washoe County Bank will Re
presumed. II necessary to support the
Judgment. "1Ae judgment roll ana
the papers" In the first case were
introduced On the trial and are
brought hero in lie statement on APP
peal. and the case rests upon them
and not upon presumptions, and the
burden Of establishing estoppel Il up
on the defendant. II any admissfost
or af{idavit a service was made 1t
should be among those papers bat 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. Gulliug
was served with summons, and the
findings state that in due time he p
peared and Aled his answer to tn
complaint. Under these circumstan
i ces further service will not be pr,
sumed. GalpiA '. Page, Is Wall, 36(
Beyond that appellants answer 4
the present case does not allege tn 1t
the answer Of Washoe County Bank
was served upon Gulling in the other
suit and il defective in this vital re-
spect. It's allegations follow the facts
disclosed by the record of the former
action which show no service, and
. it states the conclusion that by the
. filing of the former answer an issue
was raised against dullfng.
Numerous cases are cited by appel
| liant halding that by going to trial on
: new matter alleged in the answer with
out reply thereto, a reply Is waive.
' even in states where the statute pro
: vides for one. II this be the rule or
) ldinarily in actions between .
i lplaintiff and defendant or wher.
: by cross complaint new mat
s ter is alleged against q code
a PENDANT, and the latter appear
a and introduces evidence in regard to
8 1.-THE rule ought not to apply to case
r like the present one where the *
a defendant is IN court for other pul
!. poses and the answer is in reply {
r the complaint and does not state tn
; NEW facts as a cross-complaint o
= cause Of action against the co-defent
), ant, is not served or replied to by hin
e and he introduces no evidence COZ
a corning it, and other parties partic
= | nate in tho trial There hainp M "a