dissenting.
I must dissent. While Sprung II involves standards for the practice of law, I do not believe it mandates the outcome of this case. Sprung II did not deal with the issue of extrinsic fraud in obtaining a default judgment. Sprung II declined to set aside a default judgment because defense counsel’s failure to file a responsive pleading was not “excusable neglect.”
This case presents an issue of whether or not the conduct of plaintiffs’ counsel which resulted in the default judgment was extrinsic fraud. As noted in the majority opinion, “ ‘ “Extrinsic” fraud means “fraud that induced a party to default....’”” Fraud need not be an affirmative misrepresentation. It is silence where there is a duty to speak. Curtis v. Kays, 670 S.W.2d 887 (Mo.App.1984). Plaintiffs’ counsel received the letter of Wenger stating
“Additionally I note that the petition has not been filed in Pemiscot County Circuit Court and therefore I am not going to act on the interrogatories which you sent to Mr. Aumon and I would suggest that he likewise ignore them....”
In considering whether or not this placed a duty upon plaintiffs’ counsel to speak, the dissenting opinion of Chief Justice Black-mar in Sprung II is required reading. That dissent includes the following.
“I accept the proposition that a lawyer has a duty to advance his client’s interest by all honorable means, and would reject any suggestion that ‘professional courtesy’ should prevail over the lawyer’s duty to his client. I would like to be remembered as a lawyer who went all out for his clients. But I would stop short of taking advantage of a mistake known to me. Nor would I sanction a situation in which the Court permits other lawyers to get away with conduct which I consider the legal equivalent of fraud. See Columbian National Life Insurance Co. v. Black, 35 F.2d 571, 574 (10th Cir.1929). This Court, in the last analysis, sets the standards which Missouri lawyers must observe. It should not allow this plaintiff and his attorney to profit from deceptive conduct or deceptive silence.” Sprung v. Negwer Materials, Inc., 775 S.W.2d at 110 (Sprung II). (Emphasis added.)
This standard imposed a duty upon plaintiffs’ counsel to speak.
Plaintiffs’ counsel upon reading Wen-ger’s letter could only form the conclusion *633that Wenger did not act because of counsel’s silence. He evidenced this conclusion by admitting he “sandbagged” the appellant by waiting for more than a year before instituting this garnishment action.
I would reverse the judgment of the trial court and set aside the default judgment.