187 F2d 11 Board of Com'rs for Atchafalaya Basin Levee Dist v. Smyth
187 F.2d 11
BOARD OF COM'RS FOR ATCHAFALAYA BASIN LEVEE DIST. et al.
SMYTH et al.
United States Court of Appeals Fifth Circuit.
February 7, 1951.
Rehearing Denied April 19, 1951.
Ashton L. Stewart, Baton Rouge, La., Bolivar E. Kemp, Jr., Atty. Gen. of La., Carroll Buck, First Asst. Atty. Gen. of La., Charles H. Dameron, Baton Rouge, La., Ferdinand C. Claiborne, New Roads, La., for appellant.
Roberts C. Milling, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and RUSSELL, Circuit Judges.
Appealing from an order denying defendants', and granting plaintiffs', motion for summary judgment, and conceding that the district judge was right in rejecting the primary contention they made below, appellants seek now to put forward as a ground for reversal an entirely different theory and view from any of those they relied on below.
Appellees, while insisting that the theory which appellants seek now to put forward is as untenable as the one on which they lost below, urge upon us that having tried and lost the case below upon one theory, they should not be permitted now to retry the case in this court upon a wholly different one.
We agree with appellees that the issues submitted to the district judge for decision were correctly determined and disposed of. We agree with them, too, that the case, having been tried and determined adversely to appellants on the theories they elected to try it on, may not be retried here on the wholly different one they now propose to try out,1 and that the judgment should be affirmed.