Browning

Originally, the action upon which this appeal is predicated was brought by the appellant herein for a divorce from the respondent. Incidental thereto were the major questions which are involved in this appeal and which relate to the 'validity of each of two provisions contained in the judgment, which respectively affect the custody of the minor child of the parties to the litigation and the approval by the trial court of a property settlement entered into between such parties prior to the institution of the action.

In effect, the issues presented by the pleadings were twice tried. By the terms of the judgment rendered on the first trial plaintiff was granted a divorce from defendant; the custody of the minor child was provided for; and the property settlement theretofore entered into between the parties was approved. On motion of plaintiff, limited to the issues which related to the mentioned last two provisions of the judgment., a new trial was ordered generally. On retrial before a different judge, findings of fact were made and judgment rendered substantially identical with the findings made and judgment rendered on the first trial—from which it would follow that, even…