The opinion
HALLEY, J.
(dissenting in part). I agree with the majority opinion that the judgment entered on April 7, 1947, was final; but in my opinion the trial court had the right to modify its judgment during term time, and this is what it did. It is well settled in this jurisdiction that a trial court has the right, during the term in which a judgment is rendered and entered, to set the same aside, to vacate it, to correct it, or to modify it. McNac v. Kinch, 113 Okla. 59 , 238 P. 424 ; McNac v. Chapman, 101 Okla. 121 , 223 P. 350 ; Friedman v. Friedman, 132 Okla. 45 , 269 P. 257 ; Taliaferro v. Batis, 123 Okla. 59 , 252 P. 845 ; Tulsa Exchange Co. v. Kiester, 199 Okla. 440 , 186 P. 2d 808 ; Tillman v. Tillman, 199 Okla. 130 , 184 P. 2d 784 ; Levy v. Oklahoma City, 198 Okla. 414 , 179 P. 2d 465 ; Pitts v. Walker, 188 Okla. 17 , 105 P. 2d 760 ; Haskell v. Cutler, 188 Okla. 239 , 108 P. 2d 146 .
The majority opinion, by holding that the judgment of April 7th' was final and not subject to modification, avoids the necessity of answering some pertinent questions in this case the first of which is whether or not a divorce *220 action abates upon the death of one of the parties. Certainly it seems to be the settled rule that where no property is involved, a divorce action abates upon the death of one of the parties; but the better rule seems to be that, where property is involved, the action does not abate upon the death of one of the parties.
Section 1052, Title 12, O. S. 1941, which is as follows:
“No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by death of the defendant. (R.L. 1910, §5280.)”,
does not cover a divorce action, and certainly, under the statute, such an action does not abate. A very thorough consideration of this question is found in Porter v. Lerch, 129 Ohio, 47, 193 N.E. 766 , and it reaches the definite conclusion that the action for divorce does not abate upon the death of one of the parties, where property rights are involved. To the same conclusion are Price v. Price, 114 Fla. 233 , 153 So. 904 ; Graham v. Graham, 227 Iowa, 223 , 288 N.W. 78 ; Oliver v. Oliver, 216 Iowa, 57 , 248 N.W. 233 ; Craig v. Craig, 112 Kan. 472 , 212 P. 72 ; Craig v. Craig, 110 Kan. 13 , 202 P. 594 ; Swanson v. Swanson, 182 Minn. 492 , 234 N.W. 675 ; Caddell v. Caddell, 204 Mo. App. 182 , 222 S.W. 873 ; Tenaglia v. Tenaglia, 124 Pa. Super. 124 , 188 A. 370 ; Upperman v. Upperman, 119 Pa. Super. 341 , 181 A. 252 ; Craddock’s Adm’r v. Craddock’s Adm’r, 158 Va. 58 , 163 S.E. 387 ; and 27 C.J.S., Divorce, Sec. 188 (see note 93.) These cases deal primarily with the proposition of the right to appeal from a judgment after the death of one of the parties. In Chatterton v. Chatterton, 231 Ill. 449 , 83 N.E. 161 , it was held that a husband may appeal a decree of divorce where the wife died after judgment but before appeal, where property rights were involved. I see no reason, if such a case may be appealed, why the trial court could not grant a new trial as to the property rights or modify the 'judgment previously entered.
The record in the case at bar shows only five instances where the judgment of April 7th was modified or changed by the judgment of June 5th. The first instance was in regard to the policy of life insurance with the New York Life Insurance Company for $10,700, which originally had been awarded to the defendant, and in the modified judgment was awarded to the plaintiff. In the second instance, the plaintiff was given a one-half interest in a $2,500 life insurance policy on the life of E. K. Mabry with the Reserve Loan Life Insurance Co. of Texas. In the third instance, the plaintiff was given a one-half interest in a note from George L. Baird to E. K. Mabry, in which she had not received any interest originally. In the fourth instance, she was given $825 in cash in lieu of her one-half interest in the burial lots in Rose Hill Burial Park in Oklahoma City. She had been awarded originally $11,100 in cash, and in lieu thereof was given a $10,700 life insurance policy, one-half interest in a $1,500 note, one-half interest in a $2,500 life insurance policy and $825 in lieu of one-half interest in the burial lots, or a total of $13,525. In the fifth instance, she was given a sun lamp, portable typewriter, and two paintings not mentioned in the original judgment of April 7th. In addition, the court made as equal division between the parties as was reasonable under the circumstances.
Somewhere in the past we have heard of that old maxim that “equity delights lo do justice, and that not by halves”, which undoubtedly means that in a case of equitable cognizance, as a divorce action is commonly recognized to be in this state, the court is interested in rendering a complete decree, adjusting all rights and protecting the parties against future litigation. See 30 C.J.S., Equity, §100, and §67 et seq. The majority opinion ignores that maxim and states that all of the parties’ rights have not been settled in this case and *221 that the plaintiff will have to assert her rights in a separate action as to certain property which was fully disposed of by the trial court. I submit that under the facts in this case the action of the trial court is the saner way to dispose of the case. No trial judge will know more about the facts of the case and get a clearer picture of the entire situation than did the trial judge in this particular case. He had both the plaintiff and the defendant before him, which no judge in the future can do. He undoubtedly had a better conception of the rights of the parties than any judge in the future could have. There is no serious contention made that the division of the property made by the trial judge was not equitable and just. The thing that the plaintiff wanted was to get the entire judgment set aside, because of the death of the defendant, that she might take under the laws of descent and distribution, and she was not complaining too much as to the final results of the case if the entire judgment was not to be set aside. In my opinion, the trial judge rendered a fair decision here, and the majority opinion necessitates the case being disposed of piecemeal when it should be disposed of in one decision.
I dissent from the action of the court in refusing to permit the trial court to modify the judgment of April 7th and to make a complete disposition of the case. The action of the trial court should have been affirmed in toto.