ON MOTION FOR REHEARING.
Bussell, C. J.The first point is made that the court overlooked the fact that counsel insisted, in the brief and argument, upon the exception taken pendente lite to the judgment allowing *432the plaintiff’s amendment filed on September 18, 1930; this court in its original opinion having stated that this assignment of error, "not being argued or referred to in the brief, is to be treated as having been abandoned.” As we concede it to be our duty to render our judgment in exact accord with the facts as disclosed by the record, we granted the motion for a rehearing. We were seemingly misled by the manner and form in which the argument in the brief was presented, which indicated that the argument as stated in the brief was merely a statement of the facts. However, on having our attention centered upon the objection, we hasten to make the correction, and to rule that the exception is well taken, and that the court erred in the allowance of this amendment of September 18, 1930, upon the ground that it was not verified as provided by law. However, upon the merits, we are of the opinion that the court’s error in allowing the amendment was not harmful to the defendant. Had the amendment been stricken as the defendant insisted it should be, because it was not verified, the final result would necessarily have been the same as that reached by the jury. This amendment was not necessary to supply a lack of the same matter incorporated in the petition. By a previous amendment, which was not subject to objection for lack of verification, the plaintiff had disclaimed all rights or claim for alimony and other relief dependent upon a state of marital relationship. And the petition, without the amendment of September 18, 1930, charged plainly and distinctly that the money in the bank was earned by the petitioner and the defendant under an agreement of equal division of the fund, and the plaintiff asked a recovery of one half of the joint funds. ■ '
The second ground of the. motion for rehearing says: "This case, was a case in which'four Justice's, were to preside. The. record purports that said judgment of the lower or trial court is affirmed; the records showing'the following':- ‘Judgment affirmed. All the Justices concur, except Beck, P. J., who concurs in the result; Atkinson, J., who dissents,-and Gilbert, J., absent for- providential cause.’ . . It is contended that .the-judgment, of affirmance is not a judgment of affirmahce.'as. provided under the-statutes and rules of this court.”' It appears from the record, as. correctly quoted-by counsel for. plaintiff in error;, that four Justices-concurred in the judgment. ' Mr. Justice Atkinson dissented-from the judgment of affirm*433anee. Mr. Justice Gilbert was absent for providential cause. All the remaining Justices, four in number, concurred in the result reached, to wit: the judgment of affirmance. The fact that Mr. Justice Beck concurred only in the result means nothing more than that he may not agree to the rulings of the Justice delivering the opinion, or may not have concurred in all of the grounds stated by the writer of the opinion as reasons why the judgment of the lower court should be affirmed. It appears from the record that two Justices agreed not only to the judgment but also to the argument and conclusions reached on all the points discussed by the writer of the opinion, without dissent from the principles announced by the writer or the manner and form in which the views of the writer were expressed. Yet their concurrence in the final judgment which affirms the decision of the lower court is no more potent in sustaining the judgment of the lower court than that of the Justice who concurred in no more than the judgment of affirmance. The judgment of affirmance was rendered by four Justices.
After careful consideration of the motion for rehearing, the opinión of the court is modified as pointed out, but the judgment heretofore rendered is adhered to.
All Ihe Justices concur.