concurring.
I agree with the majority’s conclusion that a spouse’s death dissolves a marriage and ends a pending divorce action. There are ways to sever joint tenancies without violating a restraint against disposing of marital property and to plan devise of the individual’s property after death, subject to the elective share of the surviving spouse. Compare NDCC 47-10-23 and eh. 30.1-05. No purpose would be served by litigating division of marital property after the death of a spouse under the rules for division during life.
*697Still, I would not decide that question here because I believe this appeal came too late. In my opinion, it would be preferable to dismiss this appeal as untimely.
The filed affidavits here attested to service on each attorney by mailing copies of the trial court’s orders granting dismissal and denying the reconsideration. I understand the majority concludes that these filed “affidavit[s] of service by mail prepared on behalf of the Williams County District Court” do not constitute “actual knowledge of entry of the judgment or order ... evident on the record on the part of the appealing party.” While the majority recognizes that an “affidavit of mailing may be record notice,” the majority concludes it is not “actual notice” because it was not “served by the prevailing party upon the adverse party” in keeping with NDRCivP 77(d) for a judgment entered by the clerk. In my opinion, this ruling is too formalistic, will unsettle common practices of attorneys and judges, and will undermine the presumption of notice by mail that is explicit in our rules for orders.
A judge needs to communicate his written orders to all of the attorneys in the ease when entered, and is equally bound by the rules of procedure. See N.D.Code of Judicial Conduct 3(B)(7) (“A judge shall not initiate ... ex parte communications ....”); id. 2(A) (“A judge shall respect and comply with the law_”). Whatever the rule for giving notice of a judgment entered by the clerk, the rule for giving notice of an order was plainly followed here.
“Except as otherwise provided in these rules, every order required by its terms to be served, ... and similar paper shall be served upon each of the parties.” NDRCivP 5(a). “Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court.” NDRCivP 5(b). “Service upon the attorney ... must be made by ... mailing it to the attorney ... at the attorney’s ... last known address_” Id. “Service by mail is complete upon mailing.” Id. “Proof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that the attorney has made service pursuant to subdivision (b).” NDRCivP 5(f). “An affidavit of mailing required by this rule must state that a copy of the ... order of court, or other paper to be served was deposited by the affiant, with postage prepaid, in the United States mail and directed to the party shown in the affidavit to be served at the party’s last reasonably ascertainable post office address, showing the date and place of depositing_” NDRCivP 4(j). The affidavits of service by mailing in this case literally comply with the rules and prove service of notice.
Service is notice, and notice is knowledge. It is presumed that “a letter duly directed and mailed was received in the regular course of the mail,” though it “may be contradicted by other evidence.” NDCC 31 — 11— 03(24). When the law prescribes mail notice as a method of giving information, the receipt of a letter containing the information is conclusive proof of knowledge. Mund v. Rambough, 432 N.W.2d 50, 54 (N.D.1988) (quoting Brown v. Otesa, 80 N.W.2d 92, 99 (N.D.1956)). Here, present counsel for Doris Thorson’s personal representative does not contest that prior counsel received the orders in the mail. See State v. Tininenko, 371 N.W.2d 762 (N.D.1985). Appellant’s position is evident from his Brief on Motion to Dismiss Appeal that frames the argument thus: “The issue, then, boils down to the question: Will the North Dakota Supreme Court extend the “actual knowledge” standard to include notice from a member of the court clerk’s staff?’ ” In my opinion, the judge’s secretary’s affidavit of service by mail proves effective notice under the rules as much as one by a lawyer’s secretary.
Moreover, the majority’s decision that the affidavit of mailing was not “actual notice,” because the notice was not “served by the prevailing party upon the adverse party” under NDRCivP 77(d), ignores the Code definition of “actual notice”: “Actual notice shall consist in express information of a fact.” NDCC 1-91-23. Here, the record shows that both attorneys had “express information” that the orders had been entered by the trial court, and they therefore had “actual notice.”
*698Therefore, this is an “actual notice” case, unlike Morley, where there was no evidence at all that any notice was served. It is true that counsel for the prevailing party usually serves notice of a judgment entered by the clerk. NDRCivP 77(d). Where there is an order for entry of a judgment not intended to be final and appealable by itself, it is necessary for the prevailing party to have the clerk enter a judgment and for the attorney for that party to give notice of it to the attorney for the adverse party. Midwest Federal Sav. Bank v. Symington, 393 N.W.2d 753 (N.D.1986); Brown v. Will, 388 N.W.2d 869 (N.D.1986). Yet an order of dismissal that is intended to be final is ap-pealable without the redundant act of entering and noticing a judgment of dismissal. Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 660 n. 1 (N.D.1994); Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 608 (N.D.1992). As Morley, 440 N.W.2d at 495, explained, under NDRCivP 58, as amended in 1988, formal entry of a separate judgment by the clerk of court is no longer necessary unless judicial action directs it.
When the record shows an attorney has received notice of entry of an order by a mailed copy, I see no need to formalistically require the “prevailing attorney” (sometimes difficult to identify) to go through the redundant procedures of preparing additional formal documents to give another notice of entry. Of course, many careful practitioners will take pains to do so, but I believe the common practice for orders is to rely on what the judge has done.
In any event, form should not control function. It really should not matter where the notice comes from, as long as the record clearly shows the notice was given. See NDCC 1-01-12 (‘Where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead does not vitiate the form used.”). To make a formalistic distinction that it is okay for the court to give the notice if the prevailing attorney asks it to do so, as in Lizakowski v. Lizakowsky, 307 N.W.2d 567 (N.D.1981), but not if the court does it on its own initiative, as here, has nothing to do with the fact that the adverse attorney received notice. Here, the record shows, through a secretary’s affidavit, that copies of the orders were mailed to the attorneys, and the statutory presumption says they received them. That is all our rules require. I believe it is enough here.
In this case, I believe that notices of entry of the final orders were given by mail, are evidenced by the affidavits of service in this record, and fully comply with the rules of procedure on service of notice of entry of orders. Whenever a court sends the attorneys a copy of an order, and the service complies with NDRCivP 5 and is evidenced in the record, there has been sufficient notice. Therefore, I would dismiss this appeal as untimely.
NEUMANN, J., concurs.