concurring.
Although one is naturally inclined to be sympathetic to permitting relief from the judgment in this case, to characterize the attorney’s conduct as excusable neglect or mistake unmixed with neglect ignores settled precedent and threatens to upset the stability of the Court’s final judgment rule. Litigation must end and parties to litigation must have an ability finally to conclude a matter however much decisions on the merits of a case are preferred.
It makes little sense to try to define in a vacuum such subjective terms as “mistake,” “inadvertence,” “mistake unmixed with neglect.” These words have meaning only in a specific factual context. The most that the Court could do, therefore, is to decide whether sending a request for an extension of time to plead to a client instead of the court is a mistake unmixed with neglect. Prior case law seems already to have resolved that issue; any neglect on the part of the lawyer will prevent vacating *103the default judgment except where the attorney has completely abandoned the client.
Since the hearing after remand of this case the Court has adopted a new default judgment rule, Rule 74.05, which contains a more liberal approach to setting aside a default judgment when the motion to do so is made within one year. If the problems in Sprung I, 727 S.W.2d 883 (Mo. banc 1987), and Barney v. Suggs, 688 S.W.2d 356 (Mo. banc 1985), could have been resolved by a petition in equity, there would have been no need to adopt a new default judgment rule. It would be a distortion of precedent now to say that these problems could all along have been resolved by a separate petition in equity. That was not the teaching of Suggs,
The more serious problem, however, is that this case will be precedent for other cases — those filed as separate petitions in equity as well as those filed under Rule 74.06, which permits a final judgment to be set aside for mistake, inadvertence, surprise, or excusable neglect. Neither a petition in equity nor a Rule 74.06 proceeding is limited to default cases. Each applies equally to cases decided on the merits. A liberal interpretation of “excusable neglect” or “mistake unmixed with neglect” will undermine both default judgments and judgments in cases decided on the merits. The more liberal approach of Rule 74.05 may be appropriate for defaults but not for cases decided on the merits. Notably, the more liberal approach is not applied to defaults after one year, and, notably, there are no time limitations on the petition in equity except for laches.
I concur.