90 P.2d 275 | Utah | 1939
Lead Opinion
This is an appeal from a judgment upholding the validity of a tax title. The action has been here before. See
On the former appeal this court unanimously determined the tax deed to be invalid on the record before it but reversed the action and granted a new trial for other reasons. So far as the tax proceedings are concerned we are convinced that the facts now disclosed by the record remain essentially the same as they appeared when the case was here before. Such being the case we are precluded from again passing on a question 1 which was presented, considered, and passed upon before by this court, by force of the doctrine of the law of the case. 5 C.J.S., Appeal and Error, page 1499, 1508, § 1964, and cases there *138
cited. See also Forbes v. Butler,
Is respondent (plaintiff) entitled in any event to be reimbursed for the money he paid out for the tax deed? If the action is one at law then only such relief can be granted as has been fairly invoked by the pleadings while if the same be classified as equitable in its nature respondent may be entitled to reimbursement even though there be no 2, 3 express pleading therefor. Burton v. Hoover,
True it is that in the opinion on the prior appeal there appears some reference to the word "equities" but an examination of the abstract and briefs discloses that this question was not raised, discussed, or presented to this court 4 before. In other words this question has not heretofore been decided in such a way as to become the law of this case. 5 C.J.S. Appeal and Error, page 1503, § 1964.
This court, on substantially the same facts, having heretofore reached the conclusion that respondent's tax title was invalid, and he not having sought reimbursement, he is now precluded in this proceeding from any further relief. And as appellants did not in their answer ask for any new or 5 affirmative relief by way of quieting their own title, they are not entitled to a decree. See Fisher v. Davis,
The judgment of the district court is reversed and the cause remanded with instructions to make findings and enter a judgment against the plaintiff and respondent, Guy Bolognese. Costs to appellants.
LARSON and McDONOUGH, JJ., concur.
Concurrence Opinion
I concur in the result.
Dissenting Opinion
I dissent from that part of the opinion of the court which holds that "we are precluded from again passing on" the question of the validity of the tax deed here involved "by force of the doctrine of the law of the case." While there are statements which give some support to the above quoted statement, a careful reading of the opinion of this court on former appeal of the present case, reported in
MOFFAT, C.J., being disqualified, did not participate herein.