tion, he went to trial, seeking upon his part a foreclosure of his mortgage, with the Washoe County Bank upon the other hand, setting up the ownership of the legal title to the land in controversy, and alleging facts which it claimed cut off Gulling's right to a foreclosure, it is difficult to see how Gulling did not consent to a trial of the issues of fact and law thus presented, irrespective of the form and character of the pleadings, or the nature of the service in the action. If he did so consent and did so proceed to try the issues thus presented, he is as much bound by the decree as he would be under the most formal pleadings and service, for the court would then unquestionably have jurisdiction of both the parties and the subject-matter.

In addition to the fact that it appears that Gulling proceeded with the trial of the case, there is evidence in the record, admitted without objection and standing without contradiction, tending to prove that the codefendants Gulling and Washoe County Bank proceeded to try and did try the issues actually determined and set forth in the decree. In the opinion of Judge Cheney, rendered in the cause in question, we find the following: "There is no serious controversy concerning the facts of this case. The real issue is one of law between the defendants, the Washoe County Bank, as purchaser under the trustee's sale, and Martin Gulling, as mortgagee, under a mortgage made subsequent and subject to the conveyance called a trust deed,' and by virtue of which the sale was made. Something was said upon the argument about the price for which this property sold being inadequate, and the place of sale being unfair and oppressive. Several sufficient answers may be made to this.

**

** It is further urged that a great hardship will be wrought upon the second mortgagee if the defendant bank is held to have acquired the legal title to this property," etc. These extracts from the opinion of the trial judge indicate most strongly that both counsel for Gulling and the Washoe County Bank must have entered into an argument of the legal questions presented from the proofs offered by Gulling on the one hand, and the bank upon the other. If the parties were not trying those issues, I cannot see upon what theory they were arguing their legal effect to the court, unless the argument was subject to some reservation not disclosed by the record. After the decision was rendered the defendant bank submitted findings, to which the defendant Gulling interposed certain objections and amendments, and these objections and amendments came on regularly for settlement, and counsel for Gulling participated in such settlement, but it no where ap pears in the record disclosed in this case that the defendant Gulling ever raised a question that the trial court rendered a decision upon issues not presented to the court for determination. No appeal was ever taken from the judgment, and, so far as the record here

shows, no attempt was ever made to have it set aside or its regularity questioned in any particular. Whether the court would have been authorized to have proceeded with the trial of the cause, after the plaintiff had withdrawn from the case, over the objection of any of the other parties to the suit, is not before us for consideration, nor is the ques tion of the character of the pleadings filed, for the record does not disclose that any objection thereto was ever made.

It has been very strenuously contended by counsel for respondents upon this appeal that Martin Gulling in the former action was in court for certain purposes, but not for the purpose of trying the issues which the court in fact determined. This point was given great weight by this court in its former opinion, but further examination and consideration convinces me that the undisputed evidence shows that he remained in the case for the purpose of trying, and that he actually did try the issues which the decree of the court determined. As I now view this case, the record shows that the pleadings were in such shape that, without objection and by the consent of the parties, the issues determined by the trial court in the former proceeding might have come in question, and the uncontradicted proof offered shows that such issues, by the consent of the parties, did come in question, were litigated, and determined. There may be evidence, not offered upon the trial of this case, contradictory to that presented in the present record, which would show, or tend to show, that the questions determined by the trial court in the case of Farmers' & Mechanics' Savings Bank v. Powell et al. were not, in fact, litigated by the parties to this action, or that, if such questions were presented, argued, and submitted, it was subject to some objection or reservation which might not make the decision binding. However, unless the evidence contained in the present record is overcome, I think it cannot be said that the plaintiff herein is not estopped by the decree entered in the said suit instituted by the Farmers' & Mechanics' Savings Bank. No proposition of law is more thoroughly settled than that, when issues between parties to an action have once been tried and finally determined, whether such determination is erroneous or not, the same questions cannot again be litigated by such parties or their privies. As this case now appears, the matters now sought to be litigated were tried and determined in the case of Farmers' & Mechanics' Savings Bank v. Powell et al., in which case the parties to this proceeding were codefendants.

For the reasons given the judgment, and order of the trial court are reversed, and the cause is remanded for a new trial.

FITZGERALD, C. J., concurs.

TALBOT, J. (dissenting). In the suit of the Farmers' & Mechanics' Bank of Sacra

mento, brought in the district court at Reno against the Pollocks and Powell to foreclose its trust deed on property in Washoe county, the parties hereto and others were made defendants under the usual general allegation that they claimed or had some interest in the property which was subject, and subsequent to the trust deed. Gulling promptly, and before the sale by the trustees in California, answered the complaint in that action, and admitted the execution and priority of the trust deed, and claimed a second lien against the property under the mortgage executed to him by the Pollocks and Powell, but this answer was not served upon them so as to warrant the judgment directed to be entered against them by the decision of the district court. Several months after Gulling filed his answer, and after the trustee's sale, the Washoe County Bank filed its answer against the complaint, and therein set up the trustee's sale, having demurred in the meantime. The answer of Gulling did not refer to this sale, which had not taken place until after it was filed. No cross-complaint or allegation of fact was made or served between Gulling and the Washoe County Bank, and it seems to be conceded that the pleadings raised no issue between them.

We have for consideration a question of law relating to the validity of a judgment against a defendant and in favor of a codefendant between whom there was no crosscomplaint, no allegation of fact, no denial, no issue pleaded. If such a judgment is binding between codefendants without pleadings between them, when they have appeared in court and litigated the matter on which it is based, is there evidence in the record to show as a fact that the Washoe County Bank and Martin Gulling as hostile codefendants and adversary parties litigated the question of the validity of the trustee's sale on which the judgment in that case was rendered? It is generally and properly held that an allegation between the parties which is not denied, or which is defective and is not attacked by demurrer or in some manner on the trial, is sufficient to sustain a judgment. This is not a case of that kind, for there is not, as between the codefendants concerned, even a defective statement of fact, nor one side of an issue as constituted by allegation and denial under the usual rules of pleading. Good reasons are apparent for sustain.ng a judgment in favor of a plaintiff, which rests on an allegation in his complaint which is not denied or which, if defective, was not attacked by demurrer or motion, or in some way, in the nisi prius court. But if a judgment is to be conclusive between codefendants without any allegation between them, as now held by the court, consistently and a fortiori, it should be good between a plaintiff and defendant without allegation, and parties may in the future try their cases without any pleading. Will the estates, heirs, and successors in interest of litigants always be sufficiently pro

tected by any judgment the court may enter, even in the absence of, and without notice to the parties concerned, and without any pleadings or showing of any action on their part, if they and their estates are to be bound after the original litigants, their attorneys, and all present in court by whom the matter litigated can be proved are dead? All the attorneys then residing in the state who appeared for the various parties in the original case, as well as Martin Gulling, have since died. One or two text-writers without considering all the distinctions made by the courts or mentioning statutory provisions which may control in a few states, and while admitting that the authorities are conflicting, assert that the parties ought to be bound by a judgment based on matters which they have litigated, but which were not put in issue by the pleadings. Regarding this question, Mr. Black in his work on Judgments, wherein he cites with approval Sherman v. Dilley, 3 Nev. 24, decided in 1867, appears oblivious to the provisions of our practice act approved on March 8, 1869, two years after that case was decided. The decision was by only two of the justices, and was rendered, it would seem, after the court had changed its opinion, and while it was not entirely certain regarding the position taken. It was said in the decision: "By the former opinion of a majority of the court in this case, the judgment of the lower court was reversed, and a new trial ordered. Upon further examination of the authorities, however, I am satisfied that we were incorrect in our conclusions, and that the judgment of the lower court must be affirmed." And, referring to the matter covered by the estoppel: "It is, perhaps, not necessary that it should have been directly and specifically put in issue by the pleadings." The case was essentially different from the one at bar. It was an action to enjoin the diversion of water, and the pleadings in the former suit between the same parties related to certain premises. Under the riparian theory then claimed and the decisions, the water was appurtenant to the land, and it could have been assumed that the complaint and judgment for the premises carried the water with the other appurtenances without mentioning them. The opinion seems to have been criticised in another regard in a later one by this court. Lawson's Nev. Digest, p. 266, § 68. At section 614 of Black on Judgments (2d Ed.) the author states: "We have now seen that the estoppel of a judgment does not extend to such matters as come only incidentally or collaterally into the controversy, but only to points actually and necessarily adjudicated. In other words, that a former judgment is conclusive only as to matters in issue or points in controversy, upon the determination of which the finding or verdict was rendered. But what is the 'matter in issue' within the meaning of this rule? Is the test to be furnished solely by the issues framed in the suit, or also by

the course and nature of the evidence? Suppose that a question arises on the trial which, per se, has nothing to do with the cause of action, and is not mentioned in the pleadings, but which materially affects the stated issue and must be determined before the issue can be found either way. Suppose, further, that such question, thus becoming necessary to the decision of the cause, is controverted between the parties, and is made the subject of evidence, argument, and instructions, and that its resolution in effect determines the verdict of the jury.

Now, is the

question to be considered res judicata between the parties or not? Unfortunately the authorities are in conflict upon this subject, and the matter rests in much doubt and confusion." At section 25 of Chand's Treatise on the Law of Res Judicata, he says: "The important question, however, is: What is the matter in issue within the meaning of the rule? And, unfortunately, there is a considerable conflict of authority on that point." Section 428 of volume 2, Van Feet's Former Adjudication, states that "parol evidence is not competent to show that matters outside of the issues were passed upon."

Extracts from some decisions holding this view are: Davidson v. Shipman, 6 Ala. 33: "The general rule of the conclusiveness of judgments is the one laid down by Chief Justice De Grey, in the Duchess of Kingston's Case. That the judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court.' This celebrated judgment has been ever since recognized in England and the United States as a correct exposition of the rule. Some difficulty has, however, been found to exist, and some discrepancies will be discovered upon an examination of the numerous cases on this question as to the mode of ascertaining what was the point in issue between the parties, and whether proof, aliunde, for that purpose is admissible, or whether the point must not appear from the record. See the numerous cases on this head collected, and arranged by Cowen and Hill, vol. 3, Phil. Ev. 826, 848. Necessarily parol evidence must be admitted to identify the subject-matter of the suit. 'Every fact which exists on record must be proved by the record, but, when the question is as to the real subjectmatter of the suit, or to show a bar to another suit, the identity of the cause of action may be proved by other than record evidence.' Parker v. Thompson, 3 Pick. 429. See, also, Cist v. Zeigler, 16 Serg. & R. 282, 16 Am. Dec. 573; Robinson v. Windham, 9 Port. 397. A former judgment is a bar only in reference to the subject-matter of the suit, and the points there put in issue and determined. Where, therefore, it is proposed to show by the record of a judgment, that a certain matter was decided, it must appear from the record that such matter was in

issue, and then parol testimony may be admitted to show that the matter was in fact submitted to the jury. If the matter was not within the issue, such testimony is not admissible." Towns v. Nims, 5 N. II. 259, 20 Am. Dec. 578. "The same principle is applied and illustrated in a great many cases to be found in the books. Kent v. Kent, 2 Mass. 338; Bank v. Robinson, 2 N. H. 126; Rice v. King, 7 Johns. 20; Kitchin v. Campbell, 3 Wils. 304; Adams v. Barnes, 17 Mass. 365; Tilton v. Gordon, 1 N. H. 33; Rex v. Pancras, Peake's N. P. C. 219; Strutt v. Bovingdon, 5 Esp. N. P. C. 56; Da Costa v. Villa Real, 2 Stra. 961; Smith v. Whiting. 11 Mass. 445; Burt v. Sternburgh, 4 Cow. 559, 15 Am. Dec. 402. In all these cases the point upon which the judgment was held to be conclusive was directly in issue on the face of the record; and was the foundation of the judgment. The judgment, to be conclusive, must be upon the precise point. 2 Stark, Ev. 198-201; Bull. N. P. 244. It is also a settled principle of law that when a fact, directly in issue on the face of the pleadings, is determined by a jury in one case, the verdict may operate as an estoppel, if properly pleaded, in another suit brought diverso intuitu between the same parties. But to constitute a legal estoppel in such a case the fact must have been in issue on the face of the pleadings in the first case, and the verdict must be pleaded as an estoppel. 3 Stark, Ev. 1280, note 'y'; Evelyn v. Haynes, cited 3 East, 365; Outram v. Merliwood, Id. 346; Vooght v. Winch, 2 Barn. & Ald. 662; Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386; Sintrenick v. Lucas, 1 Esp. N. P. 43; Blackham's Case, 1 Salk 290." Rosema v. Porter, 112 Mich. 14, 70 N. W. 317: "We think it cannot be said that the former judgment is res judicata as to the extent of the defendant's lien upon the horse. The bill of particulars fixed the issue under the general pleadings. This being the case, the record cannot be contradicted by showing that other matter has been adjudicated. Mondel v. Steel, 8 Mees. & W. 858; Campbell v. Butts, 3 N. Y. 173; Burdick v. Post, 12 Barb. 168; Hatch v. Benton, 6 Barb. 28; Meredith v. Mining Ass'n, 56 Cal. 178; Green v. Clark, 5 Denio, 497; Jones v. Perkins, 54 Me. 393; Chapman v. Smith, 16 How. 114, 14 L. Ed. 868; 2 Van Fleet, Former Adj. § 428; 2 Smith, Lead. Cas. 784." Lewis' and Nelson's Appeal, 67 Pa. 165: "But it is too well settled to need either argument or authority to maintain it that the estoppel of a judgment extends only to the question directly involved in the issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. This is clearly stated in the language of Lord Chief Justice De Grey in the Duchess of Kingston's Case, 11 Harg. State Trials, 261, 20 Howell's State Trials, 538, 2 Smith's Lead. Cas. 424." Jones v. Perkins, 54 Me. 396: "There are cases where parol evidence is ad

is never allowed to contradict or vary the record. Gay v. Wells, 7 Pick. 217; McNear v. Bailey, 18 Me. 251; Sturtevant v. Randall, 53 Me. 149. The evidence must be confined to the proof of such facts and issues as were, or might have been, legitimately decided under the declarations and pleadings. If otherwise, it might contradict or vary the record. The record is conclusive evidence that the judg ment was rendered upon some one or more of the issues legitimately raised by the pleadings of the parties. The parol proof is only to distinguish which of those several issues were decided, or to show that some particular fact was decided in the determination of some of those issues." Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570: "A decree or judgment on the matter outside of the issue raised by the pleadings is a nullity." And: "Courts can only hear and determine causes on the pleadings actually filed, and not on what parties may agree they shall be." Campbell v. Consalus, 25 N. Y. 616: "To make such proceedings and judgment thus conclusive, it should have appeared, not only that the amount due on the mortgage was litigated, and found by the referees in such prior action, but it should also have appeared by the record of the judgment in such prior action that the amount due on the mortgage was put in issue by the pleadings in such prior action. Campbell v. Butts, 3 N. Y. 173; Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386; Young v. Rummell, 2 Hill (N. Y.) 481, 38 Am. Dec. 594; Burdick v. Post, 12 Barb. 168; Doty v. Brown, 4 N. Y. 71, 53 Am. Dec. 350; Standish v. Parker, 2 Pick. 20, 13 Am. Dec. 393. Even an agreement between the parties that matters foreign to the pleadings shall be given in evidence and decided by the verdict of a jury will not, it seems, enlarge the operation of a judgment entered on such verdict by way of estoppel. Wolfe v. Washburn, 6 Cow. 262; Guest v. Warren, 9 Ex. 379; 2 Smith. Lead. Cases, 672." In the opinion by Field, C. J., in Boggs v. Merced Mining Co., 14 Cal. 279, 380, it was held that "a court cannot properly, even upon the consent of the parties, pass upon questions not raised by the written allegations of the pleadings." Justice Sanderson, speaking for the court, in Garwood v. Garwood, 29 Cal. 521, said: "The judgment of a court having jurisdiction directly upon the point in controversy is, as a plea, a bar; and, as evidence, competent and conclusive as between the same parties. This rule, however, is restricted to facts directly in issue, and does not embrace facts which may be in controversy, but rest in evidence, and are merely collateral. A fact or matter in issue is that upon which the plaintiff proceeds by this action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the matters or facts in issue; and, notwithstanding they may be controverted at the

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trial, they do not come within the rule. King v. Chase, 15 N. H. 16, 41 Am. Dec. 675." Hicks v. Murray, 43 Cal. 522: "Evidence of facts, or stipulations as to the facts of a case, cannot make the case broader than it appears by allegations, nor can a party by mere force of facts admitted or proven become entitled to relief to which he would not have been entitled had his case been resisted only by general demurrer interposed to the pleadings upon which he relies.' In Concannon v. Smith, 134 Cal. 18, 66 Pac. 40, the following from Freeman on Judgments is quoted with approval: "The general expression, often found in the reports, that a judgment is conclusive of every matter which the parties might have litigated in the action, is misleading. What is meant by this expression is that a judgment is conclusive upon the issues tendered by the plaintiff's complaint. It may be that the plaintiff might have united other causes of action with that set out in his complaint, but, as long as these several matters are not tendered as issues in the action, they are not affected by it." In Meredith v. S. Clara Min. Ass'n, 56 Cal. 180: "In Sintzenick v. Lucas, 1 Esp. R. 43, Lord Kenyon lays it down that, to make a record evidence to conclude any matter, it should appear that the matter was in issue, which should appear from the record itself; nor should evidence be admitted that under such a record any particular matter came in issue. And in Manny v. Harris, 2 Johns. 24, 3 Am. Dec. 386, Spencer, J., quotes Lord Kenyon approvingly, and says, in effect, that unless the issue in the former action embraced the consideration of the present cause of action evidence ought not to be received that the jury did decide upon it."

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Supporting the same principle are Shama Churn v. Prosunno Coomar, 34 V. C. L. B. 251; Topliff v. Topliff, 8 Ohio, Cir. Ct. 55. Sections 257 and 272 of Freeman on Judgments (4th Ed.) and cases there cited, where it is said that the rule is inflexible that the estoppel is restricted to the controversy made by the pleadings. Some of the cases holding that evidence, aliunde, may be received to show what facts within the issue were or were not proved on a former trial may appear to conflict with the above, when they really do not, and are easily distinguished. This is true, regarding authorities cited by appellant, and by Prof. Black in his article on Judgments in 23 Cyc. For example, in Spiers v. Duane, 54 Cal. 176, instead of the judgment covering matters outside of the pleadings, there was a complaint with allega. tions admittedly sufficient, and it was held that objection that the answer was defective could not be made for the first time on appeal. Very correctly this and other cases hold that the judgment will be final in favor of the party who has alleged facts to sustain it, although denials may be defective or lacking. If it be claimed that part of the allegations in the complaint or of affirmative mat

ter in the answer may be dispensed with, or that allegations between some of the parties may, for instance, as here, between codefendants, when there are allegations between them separately and the plaintiff, but none directly between themselves, it would be difficult to draw any line between such dispensation of a part and of all pleadings between all parties, which would result in the lax practice of allowing litigants to try and have their cases adjudicated without any pleadings, and lessen the stability and certainty of judgments, thereby entailing greater hardships than by requiring litigants to properly plead.

If we had no statute or decisions in point and swept aside the cases cited, and it were considered the better rule to adopt in this state that regardless of pleadings parties are bound by all matters litigated, and which tho judgment may cover, it may be doubted whether the record contains sufficient or proper evidence to indicate that the matter which controlled the court and resulted in the judgment, the trustee's sale, and its validity against the Gulling mortgage, or that anything else was litigated between the defendants there, who are parties here. As it is a well-recognized principle, and one sustained by the authorities in the brief and others such as Keagy v. Bank, 69 Pac. 811, 12 Okl. 37, and Harvey v. Osborn, 55 Ind. 535, that defendants are not presumed to be adversary parties, it should not be inferred that they litigated anything between themseves from the fact that they were both in court when the answer of each was directed against the complaint, and contained no allegation of fact against the other, nor should it be so inferred because in advance of the trial as a matter of convenience and accommodation they joined in a stipulation to take depositions, which were signed: "Thos. E. Haydon and Robt. T. & Wm. H. Devlin, Attorneys for Plaintiff, W. Webster, Atty. for Deft. Washoe County Bank, T. V. Julien, of Counsel, Atty. for other defts. appearing in said action." It ought not to be implied that Gulling was an adverse party to the Washoe County Bank because he made this stipulation with the plaintiff and the other defendants any more than if he had merely stipu lated with the plaintiff when the other defendants did not join. Nor should it be so inferred from the fact that they both appeared on the trial or in court at other times. Nor are we warranted in presuming that they litigated between themselves questions relating to the validity and effect of the trustee's sale because these appeared most important and controlling to the district judge, and so seem to us now. On the trial below in this case the record in the former action was admitted, and has been brought here on appeal, but no testimony was introduced to show what questions had been litigated. The findings recite that the defendants, which would include the parties

here, introduced evidence in support of the issues made by their answers, thereby implying that they did not introduce other evidence. With the answers of the two defendants there, who constitute the parties here, containing no issue nor allegation of fact between themselves, the introduction of evidence to support the issues made by either or both of these answers and the complaint would not indicate that either of these par ties introduced evidence against the other, nor that anything was litigated between them. In the absence of presumptions and of any written stipulation, or an oral one made in open court and entered in the minutes, and with no showing that any evidence was introduced on the original trial by either of the parties here against the other, it would seem that the pleadings and the findings of the trial court are the only authorized or proper evidence of the facts which were in issue and were litigated. There is nothing in the record from which it may be suspicioned that anything was litigated between these parties as adversary codefendants in the former action, except the opinion of the district judge filed after the trial and separately from the findings and judgment. This opinion was beyond the control of the parties, and is quite different from the testimony of a trial judge if given as a witness and subject to cross examination, and its competency as evidence may be doubted.

In Buckingham's Appeal, 60 Conn. 143, 22 Atl. 509, it was said: "In admitting the record itself, therefore, under the circumstances disclosed by the finding, we do not think the court below erred. But the court also admitted in evidence the written opinion of the judge who tried the case in the United States court. This was no part of the record. It was admitted for the purpose of showing the grounds of the decree. The decree itself did not show on what facts it was based. After the record was admitted the question then was whether the validity of the gifts to the nieces, which was in issue in the case at bar, had been in issue and had been determined in the prior suit. In such a case, if the record does not clearly disclose the facts upon which the judgment or decree is based, they may be shown by any proper evidence outside of the record. Supples v. Cannon, 44 Conn. 424; Mosman v. Sanford, 52 Conn. 23. But the witnesses who give such evidence must give it in the ordinary way, and under the conditions imposed upon all witnesses. It must be given under oath and subject to the right of cross-examination, and it must not be what is termed 'hearsay' evidence. By the admission of the opinion aforesaid, as evidence to show the grounds of the decree, these fundamental rules of evidence were violated, and the court committed an error." In Keech v. Beatty, 127 Cal. 183, 59 Pac. 839: "It it be conceded that parol evidence may be given as to what the issues were in the former suit, the parol evi