On Rehearing. We have concluded that we were in error in holding that appellant did not properly and timely object and except to the action of the trial court in discharging the jury.
In Korn v. Korn (Tex.Com.App.) 15 S.W.2d 1017, it is definitely held that when complaint is made in a motion for a new trial of the court's action in withdrawing the case from the jury, discharging the jury, and rendering judgment, the error is properly presented on appeal where the judgment recites such facts.
The holding of the majority herein is in conflict with this recent opinion, decided by the Commission of Appeals, and approved by the Supreme Court.
Accordingly our judgment on motion for rehearing, affirming the judgment of the trial court, will be set aside and the judgment affirming in part and reversing and remanding in part in accordance with the original opinion, is sustained.