¶1(dissenting) :
¶2The defendants, who are seeking to overturn the judgment of the trial court, have had what they are entitled to: a full and fair opportunity to present the facts and their contentions to the district court, and have had a determination made thereon.
¶3Candor requires conceding improper entitlement of the plaintiffs’ petition to the district court as one for mandamus. However, if the total proceeding is looked at realistically: the substance of the petition, the objective sought of correcting the denial of the building permit, and the proceeding as conducted before the district court, it will be seen that in essence it was the carrying out of the procedure authorized by Sec. 10-9-15, U.C.A.1953, referred to in the main opinion. It allows:
. . . any person aggrieved by any decision of the board of adjustment . . . a plenary action for relief therefrom in any court of competent jurisdiction; provided, petition for such relief is presented to the court within thirty days.
¶4*11That is exactly what the plaintiffs did. They filed their action in the district court within the 30-day period. The defendants filed an extended and detailed answer to the petition, coupled with six affirmative defenses, and a counterclaim in which they sought the affirmative relief of an injunction against the plaintiffs. The parties and the court treated the proceeding as a contest in which the critical issue presented to and decided by the trial court was whether the projected “Oak Hill School” proposed by the plaintiffs constituted a “school” and thus allowed by the zoning ordinance. There was a plenary hearing in which the defendants and the plaintiffs joined in stipulating to facts and presenting evidence bearing on that issue. Thereafter the parties submitted their respective memorandums to the trial court. The extensive memorandum of the defendants, consisting of 17 pages, dealt entirely with the issue stated above; and it did not argue the matter of the propriety of denominating the proceeding as mandamus. The defendants should be restricted on this review to the matters presented to, and urged in their memorandum to the district court. We have held on a number of occasions that the case should be reviewed here on the basis it was presented to and decided by the trial court. See Riter v. Cayias, 19 Utah 2d 358, 431 P.2d 788; Hamilton v. S. L. County Sewerage Improvement Dist., 15 Utah 2d 216, 390 P.2d 235.
¶5It is to be noted that the problem here presented is not analogous to petitioning this court, which does not take evidence, for an extraordinary writ to interfere with a lower court. In the instant case the statute quoted, Sec. 10-9-15, expressly provides for review by the district court. The only thing the defendants can criticize or complain about is that the plaintiffs used the ill-advised nomenclature for the proceeding in using the term “mandamus” instead of some other term, such as “petition for review.” I cannot see this as anything other than a technicality which did not adversely affect the rights of the parties.
¶6The spirit and purpose of the reformed Utah Rules of Civil Procedure adopted effective January 1, 1950, was that the courts should look to the substance and merits of a controversy rather than to technicalities of terms and superficialities of form. Rule 1 provides in part that:
. They shall be liberally construed to secure the just, speedy, and inexpensive determination of every action.
¶7Consistent with this, Rule 65B(a) states; that:
Special forms of pleadings and of writs in habeas corpus, mandamus, quo. warranto, certiorari, prohibition and other extraordinary writs, as heretofore known, are hereby abolished.
¶8Rule 61, U.R.C.P., provides in part:
. . . The court at every stage of the proceeding must disregard any error *12or defect in the proceeding which does not affect the substantial rights of the parties.
¶9Because of these facts: that the proceeding for review was filed in the district court within the time by law, and was therefore in the right court, with the right parties and the right controversy; and that the parties joined in presenting to the trial court and obtaining an adjudication thereon, it is my opinion that it would be in harmony with the spirit and purpose of these rules, and in the interest of justice, that the judgment should be affirmed.