(concurring).
I concur. Speaking to the dissent, however, a word of explanation perhaps is apropos with respect to a quotation therein from In re State in Interest of Woodward 1 attributed to me. This was in a footnote, intended to be a reference to an unusual exception to the general rule that matters not pressed below fcannot be canvassed for the first time on appeal. That footnote was not intended to apply to a case like the instant one where there is no showing that the matter was raised and no opportunity had for raising it. Otherwise the possibility of invited error, if it could be raised on appeal for the first time, would become a general rule.
The observation of Mr. Justice Crockett in his concurrence thus becomes meaningful, as does that of Mr. Justice Ellett in footnote No. 3 of the main opinion. The footnote was meant to apply to a rare case adverted to in State v. Cobo,2 as reflected in the text at page 101, 90 Utah 89, syllabus 6, 60 P.2d 952, to which reference is made. To lay down the broad generalization of the dissent would not be consonant with an application of reasonable rules of procedure but, contrariwise, would sanction a sort of reverse due process area where knowledgeable waiver of a jury trial, waiver of counsel, a plea of guilty, failure to take exceptions, and the like would not be reasons to sustain a judgment, but a reason to reverse it.'
CROCKETT, Justice(concurring, with added observations).
I concur in the main opinion. But I add two further observations:
First: The rules of procedure which require a party to state his objections or defenses timely, or be deemed to have waived them, have a salutary and essential purpose in the interest of the orderly administration of justice. It seems to me so obvious as to require nothing more than the statement of the proposition to demonstrate the unfairness and impracticability of allowing a party to withhold, or to fail to disclose, such an objection until after going through the time, trouble and expense of the procedures preliminary to and through a trial, with the reservation in mind that he may win, but that in any event he has nothing to lose. But if he does lose, he will then assert a further defense by challenging the statute upon which the action is predicated, and have the whole thing held for naught.
Second: If it be assumed that we should review the matter, in my opinion the statute is not unconstitutional. See State v. Packard, 122 Utah 369, 250 P.2d 561; Connally v. General Construction Co., 269 U.S. 385; and see discussion in the closely analogous case of Buhler v. Stone (Utah 1975), 533 P.2d 392, and authorities therein cited.
. 14 Utah 2d 336, 384 P.2d 110 (1963).
. 90 Utah 89, 60 P.2d 952 (1936).