Baker v. Baker , 1936 Tex. App. LEXIS 1794 ( 1936 )

On Motion for Rehearing. A majority of this court has decided that we were in error in reversing and remanding a part of the judgment of the trial court, and have concluded that the entire judgment should be affirmed.

At the conclusion of all testimony appellee filed a written motion in the trial court, requesting that the jury be discharged and that the court proceed to decide the case, without the intervention of the jury. This motion was not resisted by appellant in any way, nor was the court's action in discharging the jury excepted to by appellant. After the jury had been discharged and a rather long and complicated decree rendered, decreeing that all of the property owned by both appellant and appellee was community property and should be divided equally between the parties, appellant excepted to such judgment and gave notice of appeal to this court.

Appellant does not here complain of the action of the court in deciding the question of divorce, of homestead, and of attorney's fees, without having submitted the same to the jury, but she does complain of the action of the trial court in deciding that all of the property was community property, without having first submitted such question to the jury.

The mere exception to the judgment of the court was not sufficient to raise the question of denying to appellant the right of trial by jury. When the court granted the motion of appellee to discharge the jury the record should affirmatively show that appellant then and there excepted to the action of the court and objected to the jury being discharged, and the failure of the record to so show is construed by a majority of this court as an acquiescence in such conduct of the trial judge by the appellant, and she will not be heard for the first time in a motion for new trial to raise such objection. Article 4632, R.S. 1925, provides that in a divorce suit either party may demand a jury. Where such demand is so made by either party it is the duty of the court to submit all questions of fact arising from the testimony, to such jury, and although the findings of the jury are not binding upon the court, and are advisory only, nevertheless, failure to submit such issues to the jury is reversible error. Daniel v. Daniel (Tex. Civ. App.) 16 S.W.2d 303.

However, where a motion is made by one of the parties to discharge the jury and have the trial court decide all questions of fact, and such motion is granted by the court without objection then and there made by the opposing side, such conduct constitutes a waiver of the right of trial by jury, and neither party will thereafter be heard to complain that issues of fact should have been submitted to the jury. Andrle v. Fajkus (Tex. Civ. App.) 209 S.W. 752.

The effect of the original opinion is to affirm the judgment rendered by the court, without the intervention of the jury, granting the divorce, setting aside the homestead for the use of the wife and fixing the amount of the attorney's fees, but to reverse that part of the judgment declaring all property to be community, because this one issue was not submitted to the jury. This action is based upon the fact that appellant does not complain of the action of the court in deciding, without the intervention of a jury, the questions of divorce, the homestead rights, and the amount of attorney's fees, but only complains of the failure of the court to submit to the jury the one issue of the character of the property.

It is plain that if appellant had no objection to the court's deciding without the intervention of a jury, the main object of the suit, to wit, the divorce, but only desired one special issue submitted to the jury, it was the duty of appellant to except to the failure of the court to submit that special issue and request its submission to the jury. Article 2190, Vernon's Ann.Tex.Statutes; Newberry v. Johnson (Tex. Civ. App.)274 S.W. 667; Coon v. Ewing (Tex. Civ. App.) 275 S.W. 481; Musey v. Hires Co. (Tex. Civ. App.) 276 S.W. 737; Hill v. Hill (Tex. Civ. App.)193 S.W. 726.

It appears to the majority of this court that appellant's complaint is not that the jury was discharged, but rather that the court did not decide the question of separate property in her favor.

In the original opinion it is stated, in substance, that the trial judge may apportion the property involved between the parties as he deems best, without regard to jury findings, but that this discretion does not extend to the issue of fact from which the character of the estate is determinable. That, therefore, the trial judge may decline to submit to the jury the question of the apportionment of the property, but he must submit the issue of the character of the estate to the jury.

The majority cannot concur in this holding. We conclude that where a jury has been demanded and not waived all issues arising from the evidence in a divorce case must be first submitted to the jury, although the findings of the jury are advisory only. The judge must give the jury an opportunity to advise him on all disputed fact issues before rendering his judgment, unless same are waived in some manner. Daniel v. Daniel (Tex. Civ. App.)16 S.W.2d 303.

Appellant not having objected to the discharge of the jury, at the time they were discharged, is not in a position to here complain of the fact that the trial court did not submit an issue to the jury with reference to the separate property of appellant.

Accordingly, appellee's motion for rehearing will be granted, our judgment heretofore entered in this case set aside, and the judgment of the trial court in all things affirmed.