concurring in part and dissenting in part. I disagree with the majority opinion insofar as it finds that the trial court did not err in rendering a judgment upon default against the defendant Stephen L. Rogers. In its rush to judgment, the plaintiff misinterpreted the guiding statute, misconstrued the procedural rules, and led the court into a misjudgment.
On December 31, 1985, the plaintiff obtained a court order requiring the defendants to appear on January 27, 1986, to show cause why a temporary injunction should not issue on its application and verified complaint. The order of service required that the defendants be served on or before January 15, 1986. As the defendant Stephen L. Rogers was a resident of Sebago Lake, Maine, the order of service required that service be made pursuant to General Statutes *641§ 52-59b.1 The sheriffs return of service shows that on January 9, 1986, he served the secretary of the state, and on the same day he sent a true and attested copy of the pleadings, “postage paid and registered, return receipt requested,” to the defendant Rogers, but the requested receipt of delivery was never returned to him to be appended to his return of service. The application for a temporary injunction and order to show cause, the order of service, verified complaint with attached exhibits, and sheriffs return of service were filed in court on January 22, 1986.
The return day of the action was January 28, 1986. Counsel for the defendants Teresa J. Murray and Timothy B. Leonard filed an appearance on their behalf on January 27, 1986. Rogers made no appearance, either by counsel or pro se, when due,2 or at any time in the trial court. On February 3, 1986, the plaintiff filed an “amendment of complaint as of right.” This amendment added counts five, six and seven to the four counts of the original complaint. Of the new counts, the fifth count was directed solely against Rogers. The certification of service required by Practice Book § 123 recited that “a copy of the foregoing was mailed, postage prepaid, this 3rd day of February, 1986, to all counsel of record” (Emphasis added.) There was no counsel of record appearing for Rogers. No order of service was obtained directing the manner of service of the amended complaint upon this nonappearing defendant. There is no record of the service of this amended complaint upon Rogers, and if he was served, the date, place and manner of service.
*642The hearing on the temporary injunction application began on February 4, 1986. It continued through February 6, when the parties and the court agreed to continue the hearing to a later trial on the plaintiff’s claims for a permanent injunction and damages. During these three days of hearing, evidence, including exhibits, was introduced against the nonappearing defendant, Rogers. Responsive pleadings were thereafter filed by the two appearing defendants, Murray and Leonard, and the issues were joined as to the claims against and by them.
The injunction hearing was resumed on April 2, 1986, combined with the trial for damages. During the identification of the case and of counsel for the record, the court acknowledged that “Mr. Rogers has not appeared in this matter.” Thereafter, testimony was resumed at this hearing. On the following day, the plaintiff filed a motion requesting that judgment by default be rendered against Rogers pursuant to General Statutes § 52-873 on these representations: “(1) This action was commenced by order of service signed by Judge William Lavery on December 31, 1985; (2) The sheriff’s affidavit4 indicates that the complaint was served upon *643defendant Stephen L. Rogers on January 9, 1986; and (3) More than three months have passed since commencement of this action.” (Emphasis added.) The required certification of service of this motion for default recited “that a copy of the foregoing was hand delivered this 3rd day of April, 1986, to all counsel of record.” Judicial notice may be taken that this motion for default was not served on the defendant Rogers as required by Practice Book §§ 3525 and 123. Additionally, no military affidavit was filed with the motion for default as required by Practice Book § 353.
At the close of testimony on April 3, 1986, the following occurred: “Mr. Robertson [counsel for plaintiff]: And, the other matter, your Honor, is: I would, before we leave today, also, as a completing matter, I would like a default entered against Mr. Rogers, the ninety days has passed.
“The Court: Has the ninety days passed—
“Mr. Robertson: Yes, your Honor.
*644“The Court: — sinee service?
“Mr. Robertson: Yes, your Honor, since the commencement of the lawsuit.
“The Court: Since service here. There is a return date.
“Mr. Robertson: The statute, your Honor—
“The Court: I have forgotten now. What does the statute say? It’s 52—
“Mr. Robertson: I have it here, your Honor.
“The Court: What is it? I have forgotten now. What does it say?
“Mr. Robertson: The ninety day—
“The Court: I have forgotten now. I am doing short calendar and I am doing the thing all the time.
“Mr. Robertson: Commencement of the action, which is December 31st.
* * *
“The Court: I want to find out: Was the defendant served. All right. This matter was filed — I still need the file to find out when it was filed. This shows when the service was made, on the 9th, of placing in the hands of the secretary of state, when it was filed. Do you have a stamp as to when it was filed?
“Mr. Robertson: I have Judge Lavery’s order of service, your Honor, which was the commencement date—
“The Court: That is—
“Mr. Robertson: — dated and signed.
“The Court: That is the date that it is stamped commencement.
*645“Mr. Robertson: Yes, your Honor. This is the date that he signed it and given the order of notice.
“The Court: All right.
“Mr. Robertson: December 31st, your Honor.
“The Court: The record should show then that this action was commenced on the 31st of December, 1985, and service was made on the defendant, Rogers, through the Office of the Secretary of State on January 9, 1986. You only have three months.
“Mr. Robertson: From December 31st, that is the commencement of the action. Three months and three days — four days.
“The Court: Three months. The action was instituted on the 31st of December, 1985. And, the action was— writ, summons and complaint was placed in the hands of the secretary of state, service on the defendant by subsequent service on January 9, 1986. A motion made, pursuant to General Statute Section 52-87, that this court note for the record that the defendant, Rogers, has not appeared and more than three months have elapsed since the commencement of the action. And, a motion for default has been made.
“The court makes a further finding that a prima facie showing is made, that no special reason for further delay exists since the defendant has not appeared within three months after the commencement of this action. Accordingly, a motion for default is granted.
“Mr. Robertson: Thank you, your Honor.”
The default was entered without the filing of a military affidavit by the plaintiff, and without the findings of the court as to military service required by Practice Book § 353. After the default for failure to appear was *646entered against the defendant Rogers on April 3, 1986,6 the injunction and damage hearings continued with the presentation of evidence against all three defendants, including the nonappearing defendant Rogers. On August 15, 1986, the court filed its memorandum of decision, in which it recited that “[t]he defendant Stephen L. Rogers has not appeared in this matter and as a result he has been defaulted.” After finding that the defendants had breached their individual employment agreements with the plaintiff, the court issued a permanent injunction enjoining the defendants, under penalty, from further breaches until August 1, 1987. In addition, money damagés were assessed against the nonappearing defendant Rogers in the amount of $60,000 jointly and severally with the other defendants, and $266.89 individually.
In its judgment file, “the court [found] that the complaint along with the application for a temporary injunction and an order to show cause were duly served on the defendant Stephen L. Rogers as appears by the affidavit7 of service attached thereto.” The judgment does not recite (1) the continuance of three months required by General Statutes § 52-87 (b) and Practice Book § 80 because of the nonappearance of the non*647resident defendant Rogers, (2) court findings as to military service required by Practice Book § 353, and (3) the entry of a default against the nonappearing defendant Rogers.
The trial court erred in entering a default against the nonappearing defendant Rogers and in rendering judgment thereon. “[T]here is a clear distinction between a default, sometimes loosely referred to as a judgment of default, and a judgment upon default. A default is not a judgment. It is an order of the court the effect of which is to preclude the defendant from making any further defense in the case so far as liability is concerned. A judgment upon default, on the other hand, is the final judgment in the case which is entered after the default and after a hearing in damages.” Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951).
Preliminarily, the plaintiffs amended complaint of February 3, 1986, containing a fifth count against Rogers was not properly filed against him. An amended complaint must be properly served upon a nonappearing defendant to be valid and supportive of a later judgment. Otherwise, there is a lack of notice constituting a basic failure of due process. It was incumbent on the plaintiff under the circumstances then existing to obtain a proper order of service or a citation from the court. Practice Book § 196 provides: “Every motion, request, application or objection directed to pleading or procedure, unless relating to procedure in the course of a trial, shall be in writing and shall, except in the case of a request, have annexed to it a proper order, and a proper order of notice and citation, if one or both are necessary. Such motion, request, application or objection shall be served on all parties as provided in Sec. 120 and, when filed, the fact of such service shall be endorsed thereon.”
*648The hearing on the plaintiffs application for a temporary injunction commenced on February 4, 1986, and continued through February 6, at which time it was suspended until a later date when the request for a permanent injunction and claims for money damages could be heard simultaneously. Evidence, including exhibits, was introduced against the nonappearing defendant Rogers at the initial hearing. That proceeding was premature against Rogers and any evidence adduced against him at that time was improper and could not support any later judgment against him. Under the provisions of General Statutes § 52-87 (b) and Practice Book § 80, a statutory continuance or postponement of the action against the nonresident nonappearing defendant Rogers was then in effect for a period of three months from its commencement. No proceedings against Rogers could take place in that interval, and any action against him then was a nullity.
The plaintiffs motion for default of Rogers for his nonappearance was not served on this defendant as required by the procedural rules, was improperly filed, and was erroneously granted. Practice Book § 352 (b) provides that “[i]t shall be the responsibility of counsel filing a motion for default for failure to appear to serve the defaulting party with a copy of the motion” and to certify such service to the court. That was not done. Practice Book § 352 (c) requires that “motions for default for failure to appear shall be printed on the short calendar” for action by the court. That also was not done.
Of great significance is the fact that this motion for default was filed after the introduction of evidence against Rogers supporting the court’s later judgment had begun on February 4, 1986, for three days, and had resumed on April 2, 1986, for two days before the motion was filed, and then was called to the court’s attention for a riding. Most importantly, the statutory *649continuance under General Statutes § 52-87 (b) and Practice Book § 80 was still in effect at the time of the filing of the motion and its grant by the court and precluded the entry of the default against Rogers and commencement of the trial itself against him. Since the trial was already in progress, it could then proceed only against the two appearing defendants.
In the case of a nonresident nonappearing defendant, such as Rogers, no default may enter for a period of three months from “the commencement of the action.” This is mandated by the statutory continuance required by General Statutes § 52-87 (b) and Practice Book § 80. The plaintiff in its motion for default and in its representation to the court on the hearing of that motion claimed that this action commenced on December 31, 1985, with the signing by a judge of the order of service. That date was before the service of the application of the plaintiff for a temporary injunction and order to show cause, the order of service, and verified complaint upon the nonresident defendant Rogers, through the office of the secretary of the state on January 9, 1986, and the return of those papers to court on January 22, 1986. The plaintiffs claim as to the commencement of the action was a misstatement of the law.
“ ‘In Connecticut, an action is commenced on the date of service of the writ upon the defendant. Broderick v. Jackman, 167 Conn. 96, 99, 355 A.2d 234 [1974]; Seaboard Burner Corporation v. DeLong, 145 Conn. 300, 303, 141 A.2d 642 [1958]; Consolidated Motor Lines, Inc. v. M&M Transportation Co., 128 Conn. 107, 109, 20 A.2d 621 [1941]; Spalding v. Butts, 6 Conn. 28, 30 [1825]; Jencks v. Phelps, 4 Conn. 149 [1821]; Clark v. Helms, 1 Root 486 [1793].’ ” McGaffin v. Roberts, 193 Conn. 393, 401-402 n.9, 479 A.2d 176 (1984), cert denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); Balboa Ins. Co. v. Zaleski, 12 Conn. App. 529, 533, 532 A.2d 973 (1987). The reason for this rule *650is that notice, actual or constructive, is the foundation of due process. See Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 99 L. Ed. 2d 75 (1988); Armstrong v. Manzo, 380 U.S. 545, 550, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Fong v. Planning & Zoning Board of Appeals, 16 Conn. App. 604, 614, 548 A.2d 454 (1988); Park City Hospital v. Commission on Hospitals & Health Care, 14 Conn. App. 413, 424-25, 542 A.2d 326 (1988).
The nonresident nonappearing defendant Rogers was served through the secretary of the state on January 9, 1986. By the calendar, three months from that date was April 9, 1986, six days after the entry of the default by the court on April 3, 1986. In Associated Transport, Inc. v. Batchellor, 19 Conn. Sup. 285, 111 A.2d 692 (1955), the trial court, on February 21, 1952, entered a default against a nonresident nonappearing defendant upon whom service had been made through the commissioner of motor vehicles pursuant to General Statutes § 7779 (now § 52-26). Several months later, an appearance was made by the defaulted defendant. In December, 1954, a motion was filed to set aside the earlier default. The court set aside the default, stating: “Nowhere does it appear, in the file or elsewhere, that the court on February 21, 1952, when it entered the default in question, had its attention called to the fact that [the defendant] was a nonresident defendant. From all that does appear, such was not the situation. Hence the relevant provision of [General Statutes § 7808 (now § 52-87 (b))] must be deemed not to have been considered and applied. It should have been. Further discussion is not required other than to say that the default of February 21, 1952, must be considered a nullity.” Id., 288.
The facts before us are not unlike those presented to the United States Supreme Court in Peralta v. Heights Medical Center, Inc., supra. In Peralta, the *651defendant was served personally with a citation, but the service was late. Under Texas law, a late service deprived the court of personal jurisdiction over the defendant. A default judgment was rendered against him for the amount claimed by the plaintiff. Peralta then brought a bill of review to set aside the default judgment, but the trial court granted summary judgment against him for failure to show that he had a meritorious defense to the action in which the judgment had been entered. The Texas Court of Appeals affirmed, but the United States Supreme Court reversed, holding: “ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.’ . . . Failure to give notice violates ‘the most rudimentary demands of due process of law.’ . . . As we observed in Armstrong v. Manzo, supra, [552,] only ‘wip[ing] the slate clean . . . would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.’ The Due Process Clause demands no less in this case.” (Citations omitted.) Peralta v. Heights Medical Center, Inc., supra, 899-900. Due process demands no less from us.
General Statutes § 52-59b (c) provides in relevant part: “The process shall be served by the officer to whom the same is directed upon the secretary [of the state] by leaving with or at the office of the secretary, at least twelve days before the return day of such process, a true and attested copy thereof, and by sending to the defendant at his last-known address, by registered or certified mail, postage prepaid, a like true and attested copy with an endorsement thereon of the service upon the secretary.”
“[A]n appearance for a party should be filed on or before the second day following the return day.” Practice Book § 66.
General Statutes § 52-87 (b) provides in relevant part: “If the defendant is not an inhabitant or a resident of this state at the commencement of the action and does not appear therein, the court shall continue or postpone it for three months and may, if it deems further notice advisable, direct such further notice of the pendency of the action to be given to the defendant by publication in some newspaper, or otherwise, as it deems expedient, or may authorize any person empowered to serve process by the laws of the foreign jurisdiction in which the defendant resides to serve upon the defendant a copy of the summons and complaint and of the order of notice. ... If, upon the expiration of such three months, the defendant does not then appear and no special reason is shown for further delay, judgment may be rendered against the defendant by default. Upon the expiration of the three-month continuance, it shall be presumed prima facie that no special reason for further delay exists.” (Emphasis added.)
Practice Book § 80 tracks § 52-87 (b) in text and requirements.
There is no sheriffs affidavit on file. This is an apparent reference to the sheriffs return of service filed on January 22, 1986, with the original pleadings.
Practice Book § 352 provides: “(a) If no appearance has been entered for any party to any action on or before the second day following the return day, any other party to the action may make a motion that a nonsuit or default be entered for failure to appear, and, subject to the provisions of Secs. 80, 353 and 366, such motion may be granted.
“(b) It shall be the responsibility of counsel filing a motion for default for failure to appear to serve the defaulting party with a copy of the motion. Service and proof thereof may be made in accordance with Secs. 121, 122 and 123. Upon good cause shown, the court may dispense with this requirement when judgment is rendered.
“(c) Except as provided in Secs. 355 and 362A, motions for default for failure to appear shall be printed on the short calendar. Unless the moving party requests that such a motion be marked off or unless the moving party is also requesting that judgment be rendered immediately after the entry of the default, the court shall grant the motion without the need for the moving party to appear at short calendar, provided the defendant has not appeared and the court is satisfied that proper service has been made and that the requirements of subsection (a) above have been met. A motion for nonsuit for failure to appear shall be printed on the short calendar. If it is proper to grant the motion, the court shall grant it without the need for the moving party to appear at the short calendar.”
Our review of the record and transcript discloses that the default for failure to appear was entered against Rogers on April 3, 1986. The defendants’ brief incorrectly states that “[t]he court at the plaintiff’s request entered a default judgment against the nonappearing defendant Rogers on May 6, 1986.” A review of the entire transcript for May 6, 1986, the last day of the trial, reveals that during direct examination of the defendant Teresa J. Murray, counsel for the defendant, objected to a line of questioning concerning the nonappearing defendant Rogers. The court made this evidentiary ruling: “I’ve allowed you to go into Rogers for a limited extent because of the fact that he has been defaulted. He’s not represented here. Leonard is represented here. There’s no need for me to allow any questions of whether or not to see whether or not he’s here.”
See footnote 4, supra. The judgment file was prepared by counsel for the plaintiff and contains the same error previously noted in his designation of the sheriff’s return as an “affidavit.”