*191Former Opinion Modified and Decree of the Court Below Reversed,' decided October 14, 1913.
On Behearing.
(135 Pac. 525.)
Mr. Justice McNarydelivered the opinion of the court.
This case was submitted upon plaintiff’s brief on September 10, 1913. On the 23d day of that month this court in an opinion affirmed the action of the lower court in dismissing the proceeding for the reason the record on appeal failed to show service of summons upon the district attorney, as required by Section 1020, L. O. L. Subsequently an application for a rehearing was made, wherein the record has been amplified by showing the service of summons was in fact made upon the district attorney as dictated by law.
Assuming the verity of the amended record, which comes here certified, we shall pass to a consideration of the case upon the merits. Defendant whose antecedent name was Mary E. Williams, obtained from the Circuit Court of Washington County, Oregon, on June 18, 1912, a decree dissolving the bonds of matrimony then existing between herself and husband, Bobert Lee Williams. Service of process was made upon defendant by means of a publication of the summons as provided by law. Defendant failing to appear in response thereto, an order of default was entered. On the 2d day of October, 1912, plaintiff and defendant in this controversy were united in marriage at the city of Vancouver, Washington. After a few days’ repose, plaintiff instituted this suit to annul the marriage contract, on the ground that a period of six months had not elapsed between his marriage to defendant and the decree dissolving the defendant’s marriage to a former husband.
*1923. Section 502, L. O. L., reads: “All marriages which, are prohibited by law, on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, or on account of either of them being one fourth or more of negro blood, shall, if solemnized within this state, be absolutely void.”
Section 515, L. Q. L., provides: “A decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such decree had not been given, until the suit has been heard and determined on appeal, or if no appeal be taken, the expiration of the period allowed by this code to take such appeal.”
By virtue of the last section, a decree of divorce declaring the marriage relation dissolved does not absolutely terminate the marriage relation, or wholly absolve the parties from its liability; this freedom occurring only upon the expiration of the time allowed to take such appeal, or if an appeal be taken upon the final determination of the case. In proceedings of this character, the code authorizes an appeal may be taken within six months from the rendition of .the decree: Section 550, L. O. L.
4. True it is that in the suit maintained by defendant against her husband the latter was in default of an answer. However, that fact does not effect the prohibition imposed by Section 515, for the reason that service was made upon defendant by publication, which under the statute does not finally conclude the rights of a defendant so served.
Section 59, L. O. L., among other things, provides that: ‘ ‘ The defendant against whom publication is or*193dered, or Ms personal representative, * * may * * upon good cause shown, and upon such terms as may be proper, he allowed to defend after judgment, and within one year after the entry of such judgment on such terms as may be just. * *
This court in the case of Waymire v. Shipley, 52 Or. 464 (97 Pac. 807), decided that the term “judgment” as there used included decrees. Apparently, then, if sufficient showing had been made by defendant’s former husband, the court would have been justified and even obligated to have entered an order setting aside and vacating the decree and permitted defendant to answer. Moreover, the statute, in obedience to moral prudence, prescribes that the state shall he a party defendant, represented by the district attorney, who must he served with summons, and is required to appear and answer and make a defense on behalf of the state: Section 1020, L. O. L. Therefore, mere acquiescence or silence upon the part of the former husband of defendant would not control or limit the right of the state, through its chosen representative, to prosecute an appeal to this court should it have appeared to the representative of the state proper for the protection of the state or to prevent fraud or collusion.
This reasoning became the judicial law of this state in the case of McLennan v. McLellan, 31 Or. 480 (50 Pac. 802, 65 Am. St. Rep. 835, 38 L. R. A. 863), wherein Justice Bean well said: “The obvious purpose and object of the statute is to enable either party aggrieved by a decree of divorce to have the same reviewed in an appellate court, and to that end it is provided that, pending such right, neither party shall be capable of doing an act which would render a reversal nugatory. A construction of the statute which would permit a marriage within the time limited would be not only *194contrary to its plain wording and evident intent, bnt would produce, in case of a reversal of the decree, the anomalous result of one pérson having two legal husbands or wives, as the case may be, at the same time, and polygamy be thus sanctioned by law. It was to prevent the confusion and uncertainty resulting from such a condition of affairs that the statute was enacted, and it must be given force and effect. ’ ’
Applying the doctrine to the undisputed facts in this case, we are constrained to say that the marriage of plaintiff and defendant, having been contracted and consummated before the expiration of the time allowed by law in which an appeal could have been had from a decree of divorce from defendant’s former husband, is absolutely void, and the decree of the court below must be reversed, and it is so ordered, and the former opinion of this court is modified so far as it ordered an affirmance.
Reversed : Former Opinion Modified.
Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice Eakin concur.