Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-12-16

matter which one defendant may al
lege against code cndant and that
no answer or reply thereto Is required
II would still Oe dangerous precs-
dent, which we. would be reluctant to,
establish, to hold that the statute de-
MES for co-defendant facts not al
leged against h ut stated in the
answer OF anotss.r 4 efendant to the
complaint, or tLas - issue would ne
ised against a-vo-defendant by the
mere filing without service of an ans
wer containing new matter alleged
against the complaint of the plaintiff.
The answer of Washce County Bank
in the former suit not having been
served upon Guliing. and he having
lied no demu rer, answer or reply to
it, which would nave been a waiver
If service, we feel constrained to hold
hat it raised no Issue against him,
md if we concede for the purposes
aere that denial by statute without
any pleading in reply is sufficient be,
-ween co-defendants, such denial
ught not to become operative before
service White " Patton, 81 Cal. Isl: ,
.;iements,E., Davis, NJ Ind, 631. TO
Acld otherwise or establish a different
practice, might cause litigants to suf-
fer great injustice An answer to
4 COMPLAINT ought to be served upon
the plaintiff but if it is not he ma
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 *
pect that another defendant will set
up a cause of action and seek judg-
ment against him, and if he does he
Should not be required to watch the
court records as Gulling could have
done for over four months after his
answer was filed to ascertain whether
any of his co-defendants filed 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 bv Gulling'v
answer to the original complaint, and
without service upon or waiver OF
service by him, valid judgment bas.
ed upon facts occurring after he mad
been served with the original com
plant and filed his answer thereto,
could not have been taken by default
against him. In Mitchess Y. Mitchell,
70 p. 50, Is New, We set aside the
action Of the district court whereby
it granted . plaintiff relief not de.
mandec in the complaint served upon
the defendant. That was pursuant to
for holding . defendant liable on a
Judgment based On q cross-complaint
or pleading q Q oodefendant without
service, than On one resting on . com
plaint Of = plaintiff which, has not
been served. In neither case should
the rights ~ the parties, 30 concl1dei
without Service or = waiver THEREOF. .
i ies saia tAe4 service Of the answea
| q the XasA0l CDunty Bank will be
presumed. 4 nece1s&ryto support the
| judsl1Snt. ms 3sAs1aent ron anal
the. Ibperx'. aias - Azstiscasss Wers
lintrodqsed a 5 AAAa Htea ana tars
brpuEM hefa in t-.e, statemept ON A.
tpe1i, Gkd he hskse ffe ,Sts upon them
and 9 a6t adtoa pfGsdmlpAe ioaS. and Che
purdeH of sstahllsAin9 .ssteppeTissup
On the, defendant. &c. ~, s6uisslsn
OF smdayit at .ssTyice ~ made Il
should Ss enScns doe paD ~ 5Tf nS ;ifs
anpearv and tNeee(6ks ~ -must cor
clude thatt Ae sassren vsA not sssrsed
L Tho retprnscE the .BAssia and recital
lin tie Xndinsv indicate tha. Gulifns
twas served With surnfsSks.' md tAsa
nndine1 ,stete tAststr.e1qsftme~he.sp D
+ peared and HE'D Mis- answer 70 tn
compaa44f Nth&& thesss .ascansta,
| eet f6ith9f iSSfviee WI hoe bs pr
Tunes. Galnil- =. EAse, IL wan. 3s
BeyclA 6axI.s {9&&s eas4.efl |
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