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

self, without becoming liable further.
This Is well illustrated by the findin&
conclusion and direction of the court
that Gulling have Judgment against
the Pollocks and Powell for the
amount due on his note and mortgage.
II the space left for this in the juie-
ment has been niled, or if the court
has made a decree of foreclosure in
favor Of Guliing, both would have been
void against the Pollocks and PowstI
for lack of service as is the Judgment
agai 1st them based on the trustee
sale and it has been held that if ono
of the parties to judgment is not
bound, the other is not They hal
been served by the Savings Bank
with complaint or summons seeking
the foreclosure of the trust deed and
filed demurrer. For the purpose ct
that complaint and 70 the extent OF IS
demands they were in court or We're
bound, but a judgment against then
for the amount or foreclosure of the
Gulling note and mortgage when they
had not been served with pleading. or
process regarding these would have
been void: The court has jurisdiction
of the subject matter of all questions
involved in this litigation, but of the
parties no further than they presented
themselves or were served with pleai-
ings or process or waived service Or
issues. If complaint and summons
on demand for one thousand dollars
is served upon a defendant, a judy
ment for ten thousand would be void,
because the district court would have
To
of only one thousand, while as far as
subject matter is concerned, it has
jurisdiction in any amount.
The facts were quite different and
the principal involved distinguishable
in Naples v. Geller, / New, EGG.
There an answer which did not de-
mand judgment upon new matter was
filed to the complaint but not served.
The question was not between code
PENDANTS. The court said that the
filing of the answer gave it jurisdic-
ton over the defendant Stripped of
dicta that decision property dete,-
| mined that the filing of an answer
to the complaint without service pre-
vents a judgment for the plaintiff
| by default While here we hold that
property rights cannot be lost or ad-
| Indicated upon an answer or pleading
by defendant seeking affirmative re-
| lief on new facts against a co-defend-
| ant without service or an issue or
| waiver
Questions are presented upon the
| record in this case whether or not,
under the provisions of the practice
act of this State, the answers filed
| by Martin Gulling and the Washoe
County Bank in the suit instituted by
| the Farmers and Mechanics Savings
Bank, in so far as they sought AFR
native relief against co-defendants,
are answers as contemplated by our
statute, or whether they are in fact
equitable cross-bills. If the latter,
whether or not. under the practice
act. they are permissible pleadings,
and further, if permissible pleadings,
whether or not the dismissal Of the
plaintiffs complaint would not re-
quire the dismissal Of the entire pro-
under the view We have taken Of this
case are not deemed necessary to be
| determined.
The judgment and order of the dis
| trict court are affirmed
Talbot, ].
| 1 Concur:
Norcross, ].
| Dissent:
| Fitzgerald, C. J.
Filed Nov %, 1905.
w. U. Douglass.
| Clerk.
By ]. w. Legste,
| Deputy.