Smith v. DeNiro

501 P.2d 265 (1972)

28 Utah 2d 259

David W. SMITH, Plaintiff and Appellant, v. Joseph DeNIRO et al., Defendants and Respondents.

No. 12752.

Supreme Court of Utah.

September 19, 1972.

*266 Harry D. Pugsley, Salt Lake City, for plaintiff and appellant.

Richard C. Howe, Murray, for defendants-respondents.

CALLISTER, Chief Justice:

Plaintiff appeals from a judgment in a quiet title action, wherein the trial court amended the findings of fact and decree upon remand from this court in a prior appeal.[1]

A review of the record reveals that plaintiff did not present to the trial court for its consideration the issues upon which he predicates error. Furthermore, in his proposed amendments to the findings and decree, plaintiff submitted the same provisions which he now challenges. Finally, in the first appeal before this court, wherein plaintiff was respondent, he did not cross-appeal, although the original decree contained one of the same provisions and had the same legal effect, which he currently claims is erroneous.

In Simpson v. General Motors Corporation[2] this court stated:

... Orderly procedure, whose proper purpose is the final settlement of controversies, requires that a party must present his entire case and his theory or theories of recovery to the trial court; and having done so, he cannot thereafter change to some different theory and thus attempt to keep in motion a merry-go-round of litigation.

The judgment of the trial court is affirmed. Costs are awarded to defendants.

TUCKETT, HENRIOD and ELLETT, JJ., concur.

CROCKETT, J., concurs in the result.

NOTES

[1] See Smith v. DeNiro, 26 Utah 2d 153, 486 P.2d 1036 (1971); 25 Utah 2d 295, 480 P.2d 480 (1971).

[2] 24 Utah 2d 301, 303, 470 P.2d 399 (1970).