Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-13


to the interest Of plaintiff, thereupoA
rested. qNat 1Gktffin 0uliing offered
and submitted evidence and proote
ana -YHsrsdBSn rested ana tat Henry Hp;
Ande, IN, Washoe County Bank ami
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 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
non-payment of his. mortgage. but that
he did not offer any in relation TO
other facts alleged in the answer 1T
Washoe County Bank The findings
and decree in that action disposed Ut
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 his note but not
to a 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 ale
cations and demands of the complaint.
orthat 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 hound in both
actions that $8.S0000. estimated to
be tue amount due tue . armers' and
Mechanics Bank and notes held by
Washoe County .ank against the
PollOcks and Powel. for $4,000 TN
secured after the execution of the
mortgage to Gulling, constituted the
consideration expressed at $14,0O0.GO
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 owirg by the Pollocks and
Powell to Crlling 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 Pollocks and
Powell before they decided to defend
ant, and is now prosecuted by the rep
resentatives of his estate The de-
PENDANT pleads 3y 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
it did not have jurisdiction. to make
the Judgment effective in quieting the
title Of appellant against Gulling,
and it has now enteredgA decree Of
foreclosure and. sale ito sstisfy his
mortgage. from which this appeal II
taken.
. The important questions under the
record and elaborate and interesting
briefs arc, whether thee matters -
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 tho framing Of
issues so that he became bound eby
the decree. Tho tacN stated in the
complaint q Farmers and Mechanics
Savings Bank aweFing tbs 'iexecatton
Of tho tEust. deed were not 6enied eby
any Qf tie. parties, The {, ptstMte.a 1T
least In favor Of the plaintiff. RAISED
deniais Of the facts alleged in Gsl-
hngIs answer. These were "a feEar1
to- the execution and .non-paynent ct
his mortgage and did slot relate 70
the trusteeas sale q Mhich Il tooks place
after his answer had been died. and,
therefore, II any issue existed re-
garding this sAle il must have .hann
founded on the answef OF the Wlshos
County Bank O4s - ,oehatfa W.
urged that the answers Of Gulling
and the Bank mace. 4 direct issue q
his right to have the property said
to pay his debts, but THE lis dealing
with conclusions and not with facti
upon which issues are based. ,Gullins
did not raise any issue regarding tbs
trustees sale for his only answer was
fled before the. sale and before the
answer Of the Washoe County Bank
In which it was alleged, and did mol
mention the name Of the latter.
On behalf of appellant it is urged
that the only pleadings provided or al
lowed by the Practice Act for the al
legation Of facts are : complaint By
the pI3intiff and an answer By q de
fendant, and that u, determining th1
, rights Of co-defendAnts between them
selves an answer Is the only pleading
permissible and that its allesationi
are deemed denied By statute, whel
| it, states = cause Of action against ,
codefendant,. the same a. II it relate,
new matter against q plaintiff. Fo
respondent q different view iss takel
and it is claimed thai under Rose \
Treadway. 4 New, $50. ana oths
cases cited, that ordinarily the de
PENDANTS in an action are not a ;rJe
tween themselves adversary parties