Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-10

self. without becoming liable further.
This fs we'll illustrated BY the finding !
conclusion and direction Of the corats
that Gulling have judgment against
the POllocks and Powell for the
amount due on his note and mortgage.
If the space left for this in the iujx-
ment has been filled, or IL the court
has made a decree of FORECLOSURES !.
favor of Gulling, both would have been
void against the Pollocks and Powsil.
for lack of service as is the Judgment
against them based on the trustees
sale and 1t has been held that If ne
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 c.
that complaint and TO the extent OF IS
demands they were in court or were
bound, but judgment against then
for the amount or foreclosure of the
Gulling note and mortgage, when thew
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 plead
ings or process or waived service or
issues. If complaint and summons
on a demand for one thousand dollars
is served upon a defendant. judy
ment for ten thousand would be void,
because the district court would have
jurisdiction over him to the extent
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, j New, 23s.
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 afiir-
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 rer.
quire the dismissal of the entire pro-
ceeding. These questions, however,
under the viex 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, J.
l Concur:
No-cross, ].
I Dissent:
Fitzgerald, C. ].
Filed Nov. %. 1905.
w. U. Douglass.
Clerk.
By J. w. Legate,
Deputy.