The opinion
*708 ON MOTION FOR REHEARING
Appellee, William King Hawkins, has filed a motion for rehearing in which he urges that upon remand, the issue of appellant Varina Ulrickson’s qualification to serve as guardian should not be retried, since the jury found her to be disqualified and, on appeal, such finding was not attacked by any point of error. We agree. The failure to secure a jury finding upon a proper special issue regarding the necessity of guardianship does not necessarily require a retrial of appellant Ulrickson’s application to be appointed guardian. Fact issues as to her qualification to act as guardian clearly may be separated from the other issues bearing upon the necessity of guardianship. Since the two issues are separable and there has been an unchallenged jury finding upon the issue of appellant Ulrickson’s qualifications, TEX.R. CIV.P. 434 permits the denial of a retrial of that matter upon remand of the case.
The remaining contentions advanced by appellee in the motion have been carefully considered and we decline to alter the foregoing opinion except that the last sentence thereof is withdrawn and the following sentence is substituted therefor: “The judgment is reversed and the cause remanded to the trial court with instructions that the alternative pleadings of appellant Ulrickson requesting to be appointed guardian be stricken with prejudice to refiling.”
HILL, J., recused.