On Petition for Rehearing. Respondent urges that the decision herein overlooks section[4, 5] 5735, Revised Codes, which provides: "The effect of a judgment of divorce is to restore the parties to the state of unmarried persons." Because of this provision, it is urged, this court has no right or jurisdiction to change the status of the parties as unmarried persons existing at the time of plaintiff's death. Of course, no court has power to revive the physical relationship of man and wife ended by death. But this is not to say that an appellate court has not the power, after death of one of the parties, to annul and set aside a judgment of divorce upon appeal, as in other cases. The whole question on appeal is whether the decree appealed from is in fact a judgment of divorce duly and properly rendered so as to be entitled to all the force and effect of a valid adjudication. We think that the judgment appealed from becomes final, in the sense urged, only upon determination of the appeal in respondent's favor, and that the effect of the appeal is to suspend the judgment until and unless held valid on final determination of the appeal. While the judgment may be final so far as the trial court is concerned, it is not final in the sense that it is not subject to be reversed and set aside on appeal. Section 9731, Revised Codes, provides for appeal from a final judgment entered in an action in a district court. Appeals lie from final judgments in divorce actions as in others. Thus, while this court could not now restore the purely physical relationship of man and wife which was terminated by the death of the plaintiff, it has authority, on appeal, to declare that the divorce decree was erroneous and invalid and of no effect, and that, consequently, *Page 125 such relationship continued to exist until the moment of plaintiff's death.
Respondent very forcefully and ably contends that since the[6] only question involved is the purely personal relationship of the parties, the appeal must abate upon the death of one of them prior to its determination. This argument would be sound were the basic premise true. But property rights of the parties are also necessarily here involved, as such rights are lawful concomitants of the marriage status. It is true that no property rights were specifically adjudicated by the decree, but it is equally true in this case that apparently valuable property rights of the wife, including dower and succession rights, will be effectively taken away from the wife should the decree be permitted to stand or the appeal abated. Many cases announce the rule that where only the personal relationship of the parties to a divorce action is expressly involved, an appeal will abate upon the death of one of the parties pending its determination. But the rule is almost universally recognized that such is not the case where property interests are involved. And we think the best and just rule is that it is not necessary that the decree itself adjudicate those rights in express terms. See Annotation to Lemp v. Lemp, Nev., 141 P.2d 212, (not yet reported [in State Reports]), found in 148 A.L.R. 1124, and cases cited.
This court will take judicial notice of the statutes of[7] Montana attaching to the marital relationship property rights in the wife in the form of dower and succession rights in the husband's property, and the right to his support. The record in this case shows ownership of property by the husband in which, by operation of law, the wife had property rights and interests.
It is ordered that this further opinion be added to the opinion herein.
Per Curiam order concurred in by Mr. Chief Justice Howard A. Johnson and Associate Justices Adair and Cheadle.