O'Gara v. Findlay

7 Utah 2d 218 (1958)

321 P.2d 953

WARREN M. O'GARA, EXECUTOR OF THE ESTATE OF NANCY E. HIRIGARAY, DECEASED, PLAINTIFF AND APPELLANT, v. ARCHIE FINDLAY, DEFENDANT AND RESPONDENT.

No. 8711.

Supreme Court of Utah.

February 25, 1958.

Lowe & O'Gara, Salt Lake City, for appellant.

Rex W. Hardy, Salt Lake City, Wm. H. King, Clearfield, for respondent.

McDONOUGH, Chief Justice.

This case was before this court on a former appeal, O'Gara v. Findlay, 6 Utah 2d 102, 306 P.2d 1073, and a decision rendered affirming the judgment of the lower court.

Appellant O'Gara on this appeal contends the lower court erred in refusing his motion made after remittitur to strike from its decree the phrase "* * * including 12 shares of water in the Davis and Weber Counties Canal Company * * *," alleging these shares had never been in issue at trial. Appellant's motion was filed subsequent to the action of this court as noted above. Although other issues are raised in appellant's brief we feel this one point to be dispositive of this appeal.

When a judgment of a lower court is affirmed by the highest court of that particular jurisdiction, such affirmance is deemed conclusive of all issues which were raised or which might have been raised on appeal.[1] The necessity of such a ruling is apparent in the prevention of piecemeal appeals. Once a matter has been heard, with opportunity for consideration of all relevant issues, there is merit in bringing it to rest. Litigation must come to an end in order that the parties can know with certainty their status.

Appellant's motion was properly overruled by the lower court. Any alleged error committed by the inclusion of this phrase within the decree could have and should have been raised on the prior appeal. The decision below is affirmed. Costs to respondent.

CROCKETT, WADE, WORTHEN, and HENRIOD, JJ., concur.

[1] People ex rel. Stead v. Superior Court, 1908, 234 Ill. 186, 84 N.E. 875; People ex rel. Carlstrom v. Eller, 1926, 323 Ill. 28, 153 N.E. 597, 49 A.L.R. 490. And see Bank of America Nat. Trust & Savings Ass'n v. McLaughlin Land & Livestock Co., 40 Cal. App. 2d 620, 105 P.2d 607; 2 Freeman on Judgments, 5th Ed., Sec. 701.