specially concurring.
In due time the Court will, perhaps, see fit to overrule Sherwood & Roberts v. Riplinger, 103 Idaho 535, 650 P.2d 677 (1982), where a majority of three upheld the entry of a default judgment taken against a defendant who had been represented by counsel who thereafter withdrew. The lay defendant, through counsel, had answered and counterclaimed, and participated in extensive and expensive discovery. After his attorney withdrew, that defendant in responding to the notice of the withdrawal, contacted the court clerk — as is documented. Id. at 537, 650 P.2d 677. Essentially overruling Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897), the majority of the Idaho Court punished the defendant for not utilizing written notice — saying that the technical failure “justified a presumption that he abandoned his defense.” Id. at 540, 650 P.2d 677. All of this the majority did notwithstanding a dissenting opinion by Justice McFadden which pointed to the three day rule of I.R.C. 11(b)(3), and the previous policy of the Court that default judgments are not favored. Id. at 541, 650 P.2d 677 (McFadden, J., dissenting).
Briefly commenting on the dissenting opinion of Bakes, J., and his concern that today’s opinion “will prove very mischievous in future cases,” I pause to note that the proliferation of over-technical rules which have been promulgated by this Court has already demonstrated a past history of mischief — of which Sherwood & Roberts v. Riplinger is an outstanding example — and the reading of which I commend to those who have not heretofore done so. To be forewarned is to be forearmed.