dissenting:
The issue in this case concerns the meaning of the following phrase from I.R.C.P. 55(b)(2), which provides that when a party wants to obtain a default judgment, “[if] the party against whom judgment by default is sought has appeared in the action, he shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.” It is uncontested in this case that neither the defendant Arvidson, nor any attorney on his behalf, had filed any written appearance, answer, motion or other pleading in the court file. Nevertheless, the majority states that because he had a communication with the plaintiff’s attorney, and because he voluntarily attended the deposition of another person which was taken in Utah, the defendant Arvidson had “appeared” in the action, and therefore the three-day notice required by I.R.C.P. 55(b)(2) was required. Not only is that result an improper stretching of the definition of appearance in order to get a particular result in this case, but it will prove to be very mischievous in future cases.
A simple example will illustrate the illogical and undesirable consequences of the action which the majority has taken today. While Mr. Arvidson was personally served with a copy of the summons and complaint in this action, suppose that he had not. Nevertheless, under I.R.C.P. 4(i) a voluntary appearance in an action “is equivalent *667to personal service of the summons and a copy of the complaint .... ” Therefore, if the majority is correct that merely communicating with the plaintiff’s attorney, and voluntarily attending another person’s deposition out of state is an appearance in the action, then those same two acts would be sufficient to render a personal judgment even without service of the summons and complaint because of the interplay of Rule 55(b)(2) and Rule 4(i). The very thought that judgment could be taken against a person who has neither been served with process nor has made a voluntary written appearance in an action, either individually or by counsel, is repugnant to our basic concepts of due process; nevertheless, under the expanded definition of “appearance” which the majority adopts in this case, that is precisely what can now occur.
The word “appearance” is a word of art under the Rules of Civil Procedure, and should not be stretched to mean something it was never intended to mean. In addition to the problem of a person who has not been served with a summons and complaint but nevertheless winds up with a personal judgment against him because he has called one of the attorneys or showed up at somebody’s deposition, another practical problem will face the trial courts in this state who now will not be able to determine whether an appearance has been made merely by examining the court file. How will a trial judge be able to tell whether or not a three-day notice is required if an appearance can result from something which is not reflected by a filing in the court file? Must the trial courts interrogate the parties to determine whether or not a person against whom a default judgment is proposed has called one of the attorneys, or happened to show up at some deposition? What if he called one of the parties rather than one of the attorneys — would that be sufficient for an appearance?
All of these problems could be avoided if the Court would follow the recognized meaning of the word “appearance” in Rule 55(b)(2) and not twist and stretch it out of shape in order to achieve a particular result in this case.
Other courts considering the same question have recognized the formality necessary in defining the word “appearance.” The typical definition usually reads, “An appearance is ordinarily an overt act by which a party comes into court and submits himself to its jurisdiction.” Anderson v. Taylorcraft, 197 F.Supp. 872 (W.D.Pa.1961); see also Jones v. Roberts Marble Co., 90 Ga.App. 830, 84 S.E.2d 469 (1954); Jones v. Main, 196 Kan. 91, 410 P.2d 303 (1966). An appearance is sometimes broadly defined as any action on the part of defendant; other courts have clarified that broad statement by noting that “although an act of defendant may have some relation to the cause, it does not constitute a general appearance, if ... no affirmative action is sought by the court.” (Emphasis in original.) Anderson v. Taylorcraft, supra at 874.
Because an appearance must be defined as a coming into court, the actions of the defendant in the present case, which were all outside the court, could not have constituted an appearance. At no time did he submit himself to the court. His attendance at the deposition of another party in Utah, and his communications with plaintiff’s attorney could not have been known to the court. Since the court itself was probably unaware of the defendant’s actions, it had no way of determining that the defendant Arvidson had made an appearance before his court. Other courts, when faced with a situation where a defendant’s participation was limited to participation in preliminary or collateral proceedings, have held that such participation does not constitute an appearance before the court. See Smith v. Gamma Constr. Co., 387 So.2d 188 (Ala.1980) (submission to deposition did not constitute appearance); Hansher v. Kaishian, 79 Wis.2d 374, 255 N.W.2d 564 (1977) (letter to plaintiff’s attorney); Booth v. Magee Carpet Co., 548 P.2d 1252 (Wyo.1976) (telephonic communication).
I would affirm the judgment of the trial court.