Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-14

70 mo tWtof6oC u QA0AuSA0p t0oIoupOA
rested. That Martin Guliing offered
and submitted evidences and proos
and ther6upon rested and that Henry
Andersen, Washoe County Bank AMI
sthe defndants and each of them, hav-
ing submitted evidence and proofs in
support of the issues maze by them
in their answers, the case was SUBJ
mitted to tho scourte The fair in
ference from the language and from
the fact that he was first to submit
proofs Isl that he Introduced evidence
to support the allegations of his ans
wer which averred the execution and
non-payment of his mortgage, but that
he did not offer any III relation to
other facts alleged in the answer Of
Washes 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 - the property
was conveyed to Washoe County Bank
clear of Cuttings mortgage, and that
the latter was entitled to a judgment
against the Pollocks and Powell for
the amount due on mis- note but not
to degree of foreclosure. The find
ings recite that defendant Gulling
was made a party to the action and
was duly served with process therein,
and in due time fled 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 fled
his answer. The court lound In both
actions that sS,S0000, estimated co
be tue amount due tie armers' and
Mechanics Bank and notes held by
| Washoel County ank against the
Pollocks and Powe.. for $5,20000 I'M
| secured after the execution of the
mortgage to Gulling, constituted the
consideration exp esse.. at $l4O00.0D
| for the deed from tnem to Washoe
County Bank, and that the property
was WORTH about that sum at the date
| of the trustees sale an. 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
T, 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 ana
| Powell before they decided to defend
| ant, and is now prosecuted by the rep
resentatives of his estate The de
| PENDANT pleads 0y way of estoppel,
! the Judgment in the former action and
claims that by it Gulling was, and his
sexecutors 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
! it did not have jurisdiction to make
the judgment effective in Quieting the
i title Of appellant against Gulling,
foreclosure and sale I'd satisfy his
mortgage from. which this appeal 10
Itaken.i 49, ~ nia'fe y
The important questions under the
record and elaborate and interestipg
| briefs are whether the matters 5.
latlng 20 the trustee1' sale dStermin-
| ed in the former action were within
the issues as between Gulling and
appellant. and II thoy were nut.
whether he waived the training Of
issues 30 THAI he became ho4lA ~
the decree. The. facts stated II the
complaint 1t Fsrmefs and. Mechanics
Savings Bank aSefing thS execution
% the trust deed were mot denied b
any of the parties. Tho statute. AZ
least In favor a the plaintiff. faisSd
depislsof the facts alleged sikr 70G'
lip&A answer These we're In regard
to the execution and non5paymeut irt
his mortgage and did not rel9ta e
the trustees 6aIe which took place
after his answer tad ebeeu dfed. and
therefore,, II any issue existed re.
! garding this sale il must hays. .hAen
founded on. the answer Of the WashUl
County Bank. On ~ SpS1hlf r, n
urged that the a6s&Sss> df G1Anl
and the rBaHk made . direct issue o.
his right To have the properly ,3<ld
to pay His debts. but this 10 de3li1l
with conclusions and not With fAcfl
upon which issues are based. GNili1;
did not raise any issue regarding tt.
trustees sale for his only answer IVA
nled before the sale and before Il,
answer OF the Washoe County BAN
!. in which it was alleged, and did no
mention the name OF the latter.
On behalf Of appellant it il urge
that the only pleadings provided or 4
lowed by the Practice Act for the .;
legation of facts are = complaint b
the plaintiff and an answer by = d,
PENDANT, and that III determining til
81 rights OF co-defendants between ther