(dissenting).
No question exists that the district court could have reconsidered and vacated its first ruling on the special appearance if its jurisdiction had been invoked by Robco through a petition to vacate judgment under Iowa Rule of Civil Procedure 252. I believe that a district court also has inherent authority to change its final judgments on its own motion, upon proper notice to the parties, in circumstances that would permit the same relief upon motion or petition by a party. Because I believe the district court had inherent authority to enter its April 25, 1983, order under this principle, I would hold that Robco’s appeal from the second ruling sustaining the special appearance was timely.
WOLLE, J., joins this dissent. CARTER, Justice(dissenting).
I dissent.
In denying the appellant the opportunity to have its appeal heard on the merits, the court engages in both an unduly rigid interpretation of what is permitted by our rules of procedure and an unwarranted interpretation of what was done by the district court in the present case.
At the outset, it is apparent that the April 8,1983 order upon which the majority elects to end the litigation adversely to plaintiff was obtained without any opportunity for plaintiff to be heard on the issue upon which the case was decided. The appellee does not contest this fact, and the district court accepted it completely. Under such circumstances, plaintiff has clearly shown a right to avoid the effect of the April 8 order either on due process grounds or other well-established principles of substantive law. In Restatement (Second) of Judgments section 71 (1982), it is stated:
*502[A] judgment may be avoided if the judgment resulted from a mistake of law or fact and_
[ijnvolved the denial of a fair hearing because of the plainly insufficient representation of a party or denial by the court of the opportunity to present a claim or defense.
Accord, Chanofsky v. Manhattan Corp., 530 F.2d 470, 472 (2d Cir.1976) (misunderstanding over scope of submission held to be grounds for avoiding adverse final judgment).1
In the present case, the majority measures plaintiffs time for appeal from the date of filing the April 8 order. I submit that if plaintiff is entitled to avoid the order, it should also be deemed to have avoided the significance of the order with respect to computing the time for appeal. Any fair interpretation of what occurred in the district court compels a conclusion that the April 8 order was nullified by the district court, the matter was heard anew, and the June 21, 1983 order became the final judgment in the case. The June 21 order did not purport to deny reconsideration of the April 8 order but, rather, was in both form and substance a new order sustaining defendant’s special appearance.
The majority suggests that the district court lacked power to avoid the April 8 order absent a motion under Iowa Rule of Civil Procedure 179(b) or a petition under rule 252. Based upon the majority’s own characterization of rule 179(b), it was an inappropriate vehicle for seeking relief based on a lack of opportunity to be heard. And, although rule 252 may have been an appropriate means for seeking such relief, it is not the exclusive means. Jacobson v. Leap, 249 Iowa 1036, 88 N.W.2d 919 (1958).
I believe that in the present case the district court had inherent power, under cases such as Peterson v. Eitzen, 173 N.W.2d 848, 850 (Iowa 1970) and Todhunter v. DeGraff, 164 Iowa 567, 575, 146 N.W. 66, 70 (1914), to set aside the April 8 order based only on the telephone call from plaintiff’s counsel.2 It is not necessary, however, to go that far in order to uphold our jurisdiction to hear this appeal.
In Miller v. Farmers Cooperative Co., 176 N.W.2d 832, 834-35 (Iowa 1970), a filing made forty-four days after an infirm judgment was entered was considered to be a basis for avoiding it although not cast in proper procedural form. In the present case, an affidavit was filed by plaintiff’s counsel on April 20,1983 (twelve days after the purported final judgment as compared with forty-four days in Miller), showing that no copy or notice of defendant’s special appearance had been given to plaintiff prior to the court’s April 8 order. The affidavit confirmed the telephone arrangement with the district court that the special appearance would be heard anew on the merits. If some written filing was required in order to give the plaintiff the relief to which it was entitled, this affidavit should suffice.
The record is clearly susceptible of an interpretation that the June 21 order was intended by the district court to be the final judgment in the case. In order to achieve this end, the April 25,1983 order for reconsideration may fairly be interpreted as vacating the April 8 order. If there is any problem in this regard, it is susceptible of correction by an entry nunc pro tunc. Such nunc pro tunc procedure would involve reentry of the April 25 order for reconsideration so as to clearly spell out that the April 8 order was being vacated.3 *503T.o proceed in this manner, would, I submit, clearly reflect that which the district court intended to do in its April 25, 1983 order. The majority, in frustrating that clear intent, has placed plaintiff in a trap whereby the delays which took place in obtaining reconsideration and a second ruling from the district court have denied it its right of appeal. We should not permit that result and should consider the appeal on its merits.4
WOLLE, J., joins this dissent.
. The majority suggests that these provisions of the Restatement are inapplicable because they only affect judgments rendered in "contested actions.” The April 8 order was a judgment rendered in a contested action within the Restatement connotation.
. Such inherent power was, recognized in the cited cases in addition to the statutory power which existed for over 100 years. This statutory power last appeared as Iowa Code section 602.-15 (1977), repealed by 1976 Iowa Acts chapter 1245, section 10203.
.This proposed procedure is clearly more compatible with nunc pro tunc procedure than that which this court invoked in In re Marriage of McCreary, 276 N.W.2d 399, 400 (Iowa 1979) and Crowe v. DeSoto Consolidated School District, 246 Iowa 38, 40, 66 N.W.2d 859, 860 (1954) in *503order to avoid jurisdictional deficiencies in the entry of final judgment. In McCreary and Crowe, the nunc pro tunc entries which were directed by this court clearly did not evidence that which had originally been intended by the district court. Yet we invoked that procedure for purposes of expediency.
. The "flood gates" argument advanced by the majority as grounds for denying plaintiff relief from the April 8 order is untenable. The type of relief which plaintiff should be accorded would be available in only those rare instances where there has been a denial of a fundamental right.