concurring specially.
[¶ 22] I reluctantly agree with the result reached by the majority opinion. I write to note that it is unfortunate our rules do not require service of the motion for default judgment upon a defendant who has not appeared. Under Article VI, § 3 of the North Dakota Constitution, this Court has the authority to promulgate rules of procedure. A proposal to amend N.D.R.Civ.P. 55 to require service of the motion on the defendant regardless of whether or not there has been an appearance has been rejected for reasons which I *428do not understand. Over the years there have been several cases in which this Court has struggled with whether or not an appearance has been made in an action such as to require service of a motion for default. E.g., Throndset v. Hawkenson, 532 N.W.2d 394 (N.D.1995); Hatch v. Hatch, 484 N.W.2d 283 (N.D.1992); Wallwork Lease & Rental Co. v. Schermerhorn, 398 N.W.2d 127 (N.D.1986); Federal Land Bank v. Lillehaugen, 370 N.W.2d 517 (N.D.1985); Svard v. Barfield, 291 N.W.2d 434 (N.D.1980); Perdue v. Sherman, 246 N.W.2d 491 (N.D.1976).
[¶ 23] If the reason for opposing the requirement to serve the application for default is cost or inconvenience, the time, effort and money expended by the parties at the trial court level on the motion to vacate the default judgment and the time, effort and money expended in this court on the appeal from the order on the motion or on the appeal from the default judgment far outweigh the cost and inconvenience of mailing a notice of motion for default judgment to the defendant. That is especially true when this Court ultimately decides notice of application for default judgment should have been given and the matter is remanded to the trial court. E.g., Svard v. Barfield.
[¶ 24] I cannot speak for my colleagues who have not joined this writing. But I believe we could better use our time dealing with matters of substance rather than deciding whether or not a default judgment should have been vacated because a telephone call was an appearance, Perdue v. Sherman, a meeting in a restaurant was an appearance, Svard v. Barfield, or whether notice should have been given for some other reason, particularly when a simple rule change could avoid many of those issues with seemingly little cost or inconvenience to the plaintiff and save the plaintiff the much greater cost of defending an expensive appeal even when the plaintiff prevails on appeal.
[¶ 25] If the reason for not requiring the plaintiff to serve notice of motion for default on the defendant is a fear the defendant might then appear with a meritorious defense, I firmly disagree with that reason. It flies in the face of our often expressed position that we prefer decisions on the merits, Perdue v. Sherman, and, if that is the reason, it does not reflect well on our system of justice.
[¶ 26] I understand the belief that a defendant properly served with the summons and complaint who purposefully chooses not to answer should not be given another opportunity to defend. On the other hand not all failures to answer are purposeful and requiring service of the application for default judgment would serve to distinguish between the purposeful and the unwitting, unknowing or, yes, negligent failure to respond to the summons and complaint. Although requiring service of the motion for default judgment might also give the scofflaw another opportunity to appear and respond, that is preferable to me if the alternative is denying the unwitting, unknowing or negligent the opportunity to advance their defense to the complaint.
[¶ 27] Of course, Rule 55 does not prohibit the plaintiff from serving notice of the motion for default judgment on a defendant who has not appeared, and I expect many lawyers representing plaintiffs do serve the notice to avoid the expense and delay of dealing with the issues raised by this appeal or the issues in the cases cited above. Unfortunately the plaintiff in this case chose not to serve notice of the motion and that notice may have avoided this appeal. If our rule required service Tran might have made the appearance to present the defense he now asks us to allow him to do. On the other hand he *429might not have responded to the notice of application for default. However, the failure to appear after service of the application for default judgment makes a much less compelling case.
[¶ 28] Nevertheless, there was no appearance in this instance, even under our liberal interpretation of what constitutes an appearance for purposes of requiring service of notice of the motion for default judgment. In view of the current status of our rule I must agree with the conclusion reached by the majority opinion.
[¶ 29] Under the circumstances of this case had I been the trial judge I might nevertheless have granted the motion to vacate the default judgment for the reasons urged by Tran. But, I was not the trial judge and, under our standard of review, I cannot conclude there was an abuse of discretion by the trial judge in this case.
[¶ 30] GERALD W. VANDE WALLE, C.J.