dissenting.
I dissent. It appears to me that the majority opinion is countenancing a subterfuge to avoid the holding in Liberty Enterprises, Inc. v. Moore Transportation Co., Inc., 690 S.W.2d 570 (1985).
The majority opinion states:
“After filing these special appearances, counsel for Emery orally requested a conference with the trial judge concerning the default judgment. This request was granted and a conference was held on August 3rd. At the conclusion of that conference, the judge set aside the default judgment." [Emphasis added.]
The reason that counsel for appellee Nonresidents “requested a conference,” rather than file a pleading “concerning the default judgment” is obvious. Counsel anticipated that if a written pleading were filed, the special appearance would be waived. He was right. He correctly anticipated the Supreme Court’s Liberty decision. However, it is plain that Nonresidents did apply to the trial court for relief from the default judgment. The majority holds that inasmuch as this application for relief was oral rather than by formal written pleading, the trial court acted on his own motion. While a trial court undeniably has the power to do so, it is nonsensical to hold that whenev*33er the application for relief is made orally, the trial court is acting on its own motion.
Nonresidents admit that the purpose of the “conference” was to obtain a judicial order relieving them from the default judgment. A pleading on behalf of Nonresidents, signed by Nonresidents’ attorney of record, and filed on September 9, 1983, states:
On or about July 27, 1983, the undersigned attorneys were retained to represent defendants, and on August 2, 1983, such attorneys contacted the court’s office and inquired as to when the court might be available for a conference with counsel for all parties respecting the default judgment. Defendant’s [sic] counsel was informed that the Court would be available at 12:45 p.m. on August 2, or 8:45 a.m. on August 3 for such a conference.... Counsel for defendants duly appeared before the Court on August 3 at 8:45 a.m. Counsel for plaintiff did not. At that time, counsel for defendants informed the Court that defendants had retained counsel and appeared in this action and requested that the Court enter an order setting aside the default judgment. The Court entered such an order on August 3. [Emphasis added.]
An affidavit attached to Nonresidents’ pleading, sworn to by counsel for Nonresidents, states:
Immediately after being informed of the Court’s availability [on August 3] I telephoned ... the attorney of record for plaintiff, informed him of defendants’ desire for a conference with the Court, at which conference defendants’ intended to request that the default judgment be set aside, ... and asked whether he could meet with the Court at either of the aforementioned times. [Emphasis added.]
In their brief to this court, Nonresidents advise us that following the filing of their special appearances, “Texas counsel for the defendants telephoned the 116th District Court and counsel for plaintiff to schedule a conference with the Court and opposing counsel regarding the Default Judgment ” (emphasis added). It is further stated:
There is no dispute ... that counsel for defendant [sic] did appear for the conference with the trial judge on the morning of August 3rd with the intention to begin, at least, an effort to have the Default Judgment set aside so that defendants’ objections to the jurisdiction could be heard ... counsel for resident plaintiff had notice of the conference and had agreed to the time. [Emphasis added.]
The position taken by Nonresidents in their original brief is: “The conference was not a hearing, it was a conference.” They do not attempt to expand upon this sublime difference. No authority is cited for the existence of any such distinction.
In their supplemental brief, Nonresidents state: “There is no dispute that counsel for defendants, after notice to plaintiff’s counsel, met informally with the trial judge on August 3, 1983, and asked the judge to set the default aside, which he did....” In order to justify their position, Nonresidents argue:
There can certainly be no presumption that something was done or said during the meeting between defendants’ counsel and the trial judge that constituted a general appearance.... To hold that an informal oral request for a trial judge to exercise his plenary power to set aside a default judgment within thirty days after its entry constitutes a general appearance would be tantamount to holding that any effort by a nonresident to have a default set aside so he may present his objections to the jurisdiction constitutes a general appearance. [Emphasis added.]
As this writer understands the Liberty decision, “any effort” taken by a nonresident to invoke the judicial powers of a Texas court to have a default set aside does, in fact, “constitute a general appearance.” Counsel for Nonresidents are to be congratulated upon their resourcefulness, but their attempt to distinguish between a hearing and a conference is barren, a dis*34tinction without substance. Their conscious choice to approach the court orally and informally rather than through written pleadings is likewise insubstantial. Such methods of practice are to be discouraged rather than rewarded. The plain and undeniable fact is that Nonresidents appeared before the court and sought to invoke the judicial powers of the court and secure a ruling in their favor. The holding by the majority that the trial court acted on its own motion is not supported by the record. Thus, the majority’s attempt to distinguish Liberty evaporates. Liberty controls.
For several generations, Texas refused to allow any type of special appearance by Nonresidents for the limited purpose of contesting the jurisdiction. Thode, In Personam Jurisdiction; Article 2031B, the Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 TEX. L.REV. 279, 292-297 (1964). Texas’ refusal to allow special appearances has withstood due process challenge. York v. Texas, 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604 (1890). At some point, inventive attorneys representing Nonresidents resorted to the device of an amicus curiae appearance wherein someone, usually an attorney, was persuaded to come before the trial court professing himself to be a “friend” of the court and “suggest” to the court that it had no jurisdiction. This device, transparent as it was, received widespread judicial recognition. It was even stated that “[n]o importance is usually attached to the fact that the person desiring to appear as a friend of the court is the regularly employed counsel of the defendant.” Hearon, Nonresident Defendants and the Special Appearance in Texas, 32 TEX.L.REV. 78, 92 (1953) (footnote omitted).
Although it remained in vogue for a number of years, the Supreme Court finally swept away the amicus curiae fiction. Held: If the nonresident defendant arranges for the appearance of the amicus curiae, then the' appearance of the amicus curiae constitutes a general appearance by the nonresident. Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957).
Why did such a transparent device survive for so many years? The only discernible reason appears to be that there was widespread dissatisfaction with the refusal of the Texas courts to recognize any type of special appearance. Apparently, our majority is dissatisfied with Liberty’s holding that any action taken to obtain relief from a default judgment constitutes a waiver of the right to file a special appearance. However, the Supreme Court has also held that special appearances may not be made in disguise. Burger, 298 S.W.2d at 121. In the case before us, Nonresidents were attempting to present to the trial court an oral motion for new trial in order to circumvent the provision of Rule 120a(l), TEX.R.CIV.P., that “[ejvery appearance, prior to judgment, not in compliance with this rule is a general appearance.” This should not be allowed.
It has been suggested that too much is being read into Liberty, that the Supreme Court did not intend to go so far as to hold that any effort to obtain relief from a default constitutes a general appearance. It is pointed out that Liberty emphasized the statement in the non-resident’s motion for new trial that “ ‘Liberty is ready to try this case when it is properly set for trial,’ ” and also emphasized that Liberty “signed an agreed order” granting a new trial. 690 S.W.2d at 571. In other words, it is suggested to us that the particular actions of that nonresident caused its downfall and that its special appearance would have been preserved except for its particular actions.
Liberty cannot be read so restrictively. It is obvious that the statement contained in Liberty’s motion was made subject to its special appearance then on file. Cf. Geary, Hamilton, Brice & Lewis v. Coastal Transport Co., 399 S.W.2d 878, 879-80 (Tex.Civ.App.-Dallas 1966, no writ) (mere filing of additional pleas does not waive plea of privilege).
Although Liberty signed an agreed order and our Nonresidents did not, no distinction can be predicated thereon. A party in*35vokes the jurisdiction of a court when he affirmatively applies for judicial relief. By signing the agreed order, Liberty, by implication, requested that the trial court sign also and make the document into its official act. Although appellee Nonresidents applied for judicial relief orally, they nevertheless applied. Moreover, they agreed to the order entered simply because it was the order requested. Everything boils down to the attempted distinction between an oral and a written application for judicial relief, a distinction without substance.
Finally, the authorities cited by the Supreme Court reflect that it has reasserted the long established Texas rule that any appearance is a general appearance, excepting only those appearances that plainly fall within the ambit of Rule 120a. It must be concluded that the Liberty court was holding that any application to set aside a default and grant a new trial constitutes a general appearance.
The Supreme Court has refused to extend Rule 120a by construction. We have the obligation not to extend it by subterfuge. If the rule is unduly harsh, it should be amended. If Liberty was improvidently decided, the decision should be reconsidered and overruled. Neither of those rec-ourses can be accomplished by this court. We should not attempt to do by indirection and fiction that which cannot be done directly. Burger, 298 S.W.2d 119.
Being of the opinion that Liberty Enterprises is controlling, I dissent. The special appearance should be striken. This court should rule that Nonresidents have entered a general appearance. The case should be remanded for trial on its merits.