I concur in the judgment of affirmance, but do so, only, upon the finding of the majority that appellant did not properly make and preserve timely objections and exceptions to the action of the trial judge in discharging the jury without submitting to them the issues of fact in the case.
The sole, or at least the controlling, law question presented in the appeal, as I understand it, is that of whether appellant was entitled to have the impaneled jury pass upon the weight and credibility of material testimony establishing the character of the estate (separate or community) the respective parties had in the property to be distributed between them. Certainly no other question of law was decided, or sought to be decided, in the original disposition.
It was, and still is, my opinion that appellant was entitled to have the jury pass upon those issues, notwithstanding it was the prerogative of the trial judge, even in disregard of advisory jury findings upon other issues, to apportion the property among the parties, having in mind, nevertheless, the character of their respective estates therein, as determined from jury findings with respect to that issue.
It was held in the original opinion, simply, that there being issues of fact which would authorize or require the judge to hold as a matter of law that some of the property to be disposed of was the separate property of one of the parties, then that party was entitled to have the jury pass upon those issues of fact, in order that the judge might apply the law to those facts, and dispose the property accordingly. I think that holding was correct, and adhere to it.
But, in deference to the finding of the majority that appellant did not timely make and consistently save the point relied on for reversal, I concur in affirmance.