concurring and dissenting.
In Bunn v. Bunn, 99 Idaho 710, 711-12, 587 P.2d 1245, 1246-47 (1978), the Court stated that which has ever been my view, relating to over-technical application of statutes or rules of procedures:
“In addressing the effect of noncompliance with procedural statutes and rules, the Court in Stoner v. Turner, 73 Idaho 117, 121, 247 P.2d 469, 471 (1952), said:
‘The object of statutes and rules regulating procedure in the courts is to *52promote the administration of justice. Those statutes and rules which fix the time within which procedural rights are to be asserted are intended to expedite the disposition of causes to the end that justice will not be denied by inexcusable and unnecessary delay. But, except as to those which are mandatory or jurisdictional, procedural regulations should not be so applied as to defeat their primary purpose, that is, the disposition of causes upon their substantial merits without delay or prejudice.’
Such philosophy again found expression in the Idaho Rules of Civil Procedure. Rule 1, as first promulgated, stated the following, which continues in the rule as now amended:
‘These rules govern the procedure in the district, probate and justices’ courts in the state of Idaho in all actions and proceedings of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in particular rules and in rule 81. They shall be liberally construed to secure the just, speedy and inexpensive determination of every action and proceeding.’
Rule 1, I.R.C.P.” (Footnote omitted.)
In Sherwood & Roberts, Inc. v. Riplinger, 103 Idaho 535, 650 P.2d 677 (1982), Justice McFadden and myself in separate dissenting opinions both strongly deplored the Court’s arbitrary refusal to follow the precepts of Bunn v. Bunn, and contrarily based its decision to uphold the entry of a default there on its supposed deference to the discretion of the trial court:
“The right to grant or deny relief under I.R.C.P. 60(b) is a discretionary one. Thus, absent a showing of arbitrary disregard for the relevant facts and principles of law by the court below, this Court will affirm the lower court’s decision to deny or grant relief under I.R.C.P. 60(b). Johnston v. Pascoe, 100 Idaho 414, 419, 599 P.2d 985, 990 (1979); Usher v. Krasselt, 96 Idaho 854, 857, 538 P.2d 783, 786 (1975). We see no such arbitrary disre-
gard in the present case, and therefore affirm the order denying relief.”
Sherwood, supra 903 Idaho at 541, 650 P.2d at 683.
It is more than interesting to note that the three members of the Court who comprised the majority in that case are in the majority in today’s opinion which sets aside a default which the Industrial Commission in its discretion refused to set aside on the showing made. Counsel in the Sherwood case will be astounded to learn from the Court just fourteen months later that:
“The law abhors a default judgment, and hence we are inclined to give the benefit of any doubt to the party against whom default has been entered, in accordance with our long-standing policy favoring a decision on the merits of the case over disposition upon a procedural technicality.” (Emphasis added.)
It is so evident from the flavor of the majority opinion that the Court today retries for itself the surety’s application to set aside the default that the point need not be belabored at length. For instance, missing from today’s opinion is the Sherwood language that this Court will affirm “absent a showing of arbitrary disregard for the relevant facts and principles of law ....” 103 Idaho at 541, 650 P.2d at 683. Instead, “We now turn to the record to determine whether it discloses that in the instant case there were excusable neglect and meritorious defense.” Following that preamble, the majority finds both a showing of excusable neglect and a meritorious defense. The Commission, however, on the same record, did not find excusable neglect, and that should be the end of it, unless the majority is prepared to say— which it avoids doing — that the Commission arbitrarily concluded that the surety’s conduct “was not ... in a manner which would be expected of a reasonable and prudent person.”
Reciting the general rule which appertains to commission findings, the majority gives us only this, to me incomprehensible, statement, and the very gist of its rationale:
*53“In the instant case, however, the record before us is devoid of any evidence upon which we might sustain the commission’s finding as to the reason for the surety’s inaction on Nelson’s application for hearing.”
The Commission, as I read the same record, held that there was no reason advanced by the surety which supported a claim of excusable neglect. The majority is thus seen as blatantly deducing from the record “that the surety has demonstrated excusable neglect.” The Commission held exactly the opposite, and the Court this day sees fit to usurp the fact-finding function of the Commission. That this Court continually does such things on occasion can only lend to uncertainty in the law.
Moreover, as pointed out above in the Bunn v. Bunn excerpt, case law and the Court’s rules of procedure govern the procedure in the district courts and lower courts of the state. Today we review not court action taken below, but an administrative decision of the Industrial Accident Commission. It has promulgated its own rules and regulations which govern procedures before it:
“VIII.
“DEFAULTS
“(a) When a party against whom an award or judgment for affirmative relief is sought has failed to plead or otherwise defend, within the time prescribed by these rules, the Commission shall enter his default. Said entry of default shall be made whether by motion of the parties seeking the entry or by the Commission on its own motion.
“(b) Following the entry of such default by the Commission, the Commission shall then set the matter for hearing as in other cases, and the party seeking a default award or judgment shall be required to establish a prima facie case to support his application for such award or judgment. Proof of medical facts may be made by the contents of the Board’s file.
“(c) For good cause shown the Commission may set aside an award or judgment by default. An application to set aside the award or judgment must be made within 20 days of the date thereof.”
Industrial Commission, “Rules of Practice and Procedure Under Workmen’s Compensation Law,” Effective January 3, 1972.
In this case the Commission itself entered the default of the surety. It also complied with its own rules and required the claimant to establish his case, which was done. In the past ten years the Commission has handled four hundred twenty thousand one hundred twelve (420,112) claims, only a few of which have reached this Court. In medical, causation, and disability rating matters, this Court has on many occasions recognized the expertise of the Commission. The cases are legion in number and citation would be superfluous. Apparently unnoticed by the other members of this Court, the Commission not only has its own rules and regulations, and the expertise which I mention, but it also has expertise in the administration of claims and the application of its own rules and regulations. Based on that expertise, which in only ten years encompasses the handling of over 420,000 claims, practically all of which were against sureties for employers, it without doubt has acquired an expertise in the manner claims are properly handled by sureties. Not to be forgotten is the extremely significant factor that the industrial-oriented member of the Commission has an extensive prior background in the surety business. Against that backdrop of experience and expertise the majority of this Court contentedly substitutes its collective judgment for the collective judgment of the Commission. I cannot comfortably do so.
Although I applaud the majority opinion for its ready compassion in directing the Commission to “award benefits nunc pro tunc” as of fourteen months ago, a doubtful legal proposition, if it deigns to make an award to claimant, I do not think that the scant amount of interest on any award made is the equivalent of granting costs and expenses where a default judgment is *54set aside. Older practitioners will remember that where the district courts did find excusable neglect, the entry of an order setting aside the default was conditional on payment of costs and expenses. Here, unnoticed by the majority, counsel for the claimant, who could not conscionably or ethically agree to the vacating of his client’s award (judgment), requested of the Commission only that if it did set aside the award and re-open the case, costs should be awarded. The majority of the Court, in moving into the Commission’s territory, do nothing in that regard — which in my judgment heaps travesty upon usurpation.
In closing, according to my recollection, just in the last thirty months or so, this Court, or at least some members thereof, have come down with a holding that even on a written record this Court may not properly substitute its findings for those of the Commission. Today the Court does just that — thereby completely breaking with all precedent.