On Motion for Rehearing.
We adhere to the judgment of reversal as well as the opinion thereon. It is contended by defendant in error that because plaintiff in error joined in an agreement that the only issue to be determined in the case was the amount of the award to be made, plaintiff in error waived the right to complain of the failure to apportion the award among the several owners of the land condemned. It may be true that plaintiff in error would have been precluded by such waiver had the parties been content to submit the appeal upon the original agreement of facts in the case, *196because those facts related alone to the single issue submitted to the jury. But defendant in error joined in a supplemental agreement of facts proven upon the trial, which presented evidence raising the issue of apportionment, which should have been determined in the trial court. It appears from that agreement that the plaintiffs in error were “joint” owners of the property condemned, and ordinarily that finding would warrant this court in rendering judgment thereon, without remanding the cause. But it also appears from the record 'that two of the plaintiffs in error are husband and wife, and while it is probable that their interesáis one, and joint with their co-owner, yet it does not afiirmatively so appear, and we decline to settle the matter. The record in this case is not satisfactory, was loosely made, and has been confused by improvident agreements. It is hoped that the case will be clarified upon another trial.
The motions for rehearing are overruled.