dissenting.
The principal opinion, not composed in this Court, is faulty in at least three principal respects, as follows: (1) it departs from established principles of equity jurisprudence, citing cases which are clearly distinguishable and ignoring pertinent authority so as to deny relief from a judgment which, at the very least, became final only as the result of mutual mistake; (2) it sanctions the dilution of professional standards by condoning a lawyer’s conduct in deliberately allowing his opponent to proceed under mistaken assumptions, correcting the assumptions only after the passage of a relatively short time had given him a decided advantage; and (3) it reaches a manifestly unjust result, not under the compulsion of precedent but in the face of authority, upholding a very large judgment without trial. I would vacate the judgment and remand with directions to set aside the default judgment and allow the trial to proceed.
1. The Facts
The facts detailed in the principal opinion are incomplete. The facts are uncontra-*107dieted, and so Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), presents no bar to our full review.
The defendant was served on January 11, 1985. The defendant’s counsel, assigned by its insurance company, received the summons and petition on January 31, 1985. He immediately took steps to obtain time to file an answer, preparing a request for extension to March 21, 1985, but, through the clerical mistake of the office force, the documents were mailed to the insurance company which routinely requested copies of court documents, and not to the court or to plaintiff’s counsel. This was a single act of negligence, properly attributable to the client. It is possible that the mistake could have been discovered if the insurance company had carefully examined the papers mailed to it, or if the defendant’s attorney’s office staff had noted entries in the Daily Record, but the essential problem springs from the initial clerical mistake.
Plaintiff's counsel quite properly filed a motion for judgment by default on February 28,1985, when he received no response to the petition. Nothing indicates that he had any idea who represented the defendant at this time. He then obtained a setting, put on evidence, and was granted a default judgment in the amount of $1,500,-000 on March 11, 1985. The judgment so obtained was subject to being set aside on motion filed on or before April 10, 1985, in the discretion of the trial court. Vandergriff v. Missouri Pacific R.R., 769 S.W.2d 99, 101 (Mo. banc 1989).
Defendant’s counsel did not neglect his case. He prepared and filed an answer on March 23, 1985, mailing a copy to plaintiff’s counsel. He then prepared written interrogatories and a notice to take depositions on March 30, 1985, mailing copies to plaintiff’s counsel.
The response of plaintiff’s counsel is best described in his own words, as follows:
I called him [Sprung, plaintiff] to tell him that within the 30 day period there had been an answer filed and he asked me what that meant and I said, “I don’t really know what they mean by this, but there is an attorney now who thinks that it’s still a lawsuit,” and that’s what I told him.
Q So it appeared to you that Mr. Ely was filing an answer and had no realization that there had already been a default judgment?
A That’s correct.
Q And you passed that information on to Mr. Sprung?
A Right.
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Kortenhof and Ely ... may have been responsible for the default ... But I said you know, “I could talk to him about it and find out if they’re involved. If they’re involved, they’ll file a motion to set it aside.” I said, “If the insurance company’s involved and they’re not involved, they’re still going to file a motion to set it aside,” and that was basically it and he said, “Well, what will that mean to me?” I said, “There’s a chance you can lose your verdict (sic),” and he said, "Don’t do it.”
Plaintiff’s counsel further testified:
So after the 30 day period I waited until 10 more days, which would be the normal appeal time and sometime after that, maybe the 41st, 42nd, depending on what day of the week it was, I don’t recall, I called Ben on the phone and said, “Ben, I’d like to come down and see you,” and he said, “Okay.” And I came on downstairs and talked to him.
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Sprung v. Negwer Materials, Inc., 727 S.W.2d 883 (Mo. banc 1987) (Sprung I), held that these facts stated a claim for equitable relief. We must now decide whether the trial court properly applied established principles of equity jurisprudence to the undisputed facts. For the reasons which follow, I submit that it did not.
2. “Mistake” vs. “Neglect or Inattention”
Judge Robertson expounds the sense of Sprung I accurately, whereas the principal opinion’s analysis of its holding is faulty. There was no purpose of circumscribing *108the court's historic equitable power. That defendant’s counsel is guilty of “mistake” rather than “inattention or neglect” is shown by his proceeding with the other pretrial steps in the case. Decades of equity cases support the granting of relief under the undisputed facts of this case. The principal opinion simply ignores the strong line of authority.
Judge Covington suggests,
[A]ny neglect on the part of the lawyer will prevent vacating the default judgment except where the attorney has completely abandoned his client.
This suggestion is flatly contrary to our opinion in Whitledge v. Anderson Air Activities, 276 S.W.2d 114 (Mo.1955), which would control the court of appeals cases cited in the principal opinion, to the extent that there is any conflict. That case involved confusion as to whether the defaulting defendant had insurance coverage. The trial judge expressly found as follows:
Defendant is guilty of negligence and inexcusable neglect in failing to appear or plead in this case prior to January 21st, 1954.
We nevertheless found an abuse of discretion when the trial court refused to set the judgment aside on motion. That case, which appears to be the latest pertinent word from this Court, furnishes ample authority for setting aside the default in this case. The majority should frankly say that it is now overruled.
The principal opinion tries to distinguish that case on the basis that it involves “abandonment” rather than “mistake”. The attempted distinction is not at all persuasive, on the law and the facts. Can it be the law that a client may have relief if his attorney is greatly at fault, but not if there is but a single mistake? The logic of such a holding escapes me. I cannot see any possible basis for distinguishing Whit-ledge. The opinion shows that the defendant’s counsel there performed essentially as defendant’s counsel in this case.
The principal opinion cites in qualification of Whitledge only Rucker v. Thrower, 559 S.W.2d 40, 41-42 (Mo.App.1977), in which a defendant sought to avoid a default judgment when the plaintiff sued out an execution. The case is totally distinguishable because there the defendant had previously moved to set aside the default judgment and then took, but failed to perfect, an appeal from the denial. Res judicata clearly barred collateral attack for relief which could have been obtained on the abandoned appeal.
Sprung I, in holding that the defendant’s motion stated a claim in equity, necessarily invites us to examine respected authorities such as Pomeroy’s Equity Jurisprudence, originally published in 1881. To the passages relied on by Judge Robertson, I would add the following (5th Ed., 1941, Symons, § 856b):
Mistake Must be Free from Culpable Negligence. — As a second requisite, it has sometimes been said in very general terms that a mistake resulting from the complaining party’s own negligence will never be relieved. This proposition is not sustained by the authorities. It would be more accurate to say that where the mistake is wholly caused by the want of that care and diligence in the transaction which should be used by every person of reasonable prudence, and the absence of which would be a violation of legal duty, a court of equity will not interpose its relief; but even with this more guarded mode of statement, each instance of1 negligence must depend to a great extent upon its own circumstances. It is not every negligence that will stay the hand of the court....
Missouri authorities are consistent. Moreland v. State Farm Fire and Casualty Co., 662 S.W.2d 556 (Mo.App.1983); Cameron State Bank v. Sloan, 559 S.W.2d 564 (Mo.App.1977); Berry v. Continental Life Insurance Co., 224 Mo.App. 1207, 33 S.W.2d 1016 (1931); New York Life Insurance Co. v. Gilbert, 215 Mo.App. 201, 256 S.W. 148 (1923).
Judge Covington’s concurrence, now speaking for three judges, fails to give attention to pertinent equitable authorities. It has been suggested that the rules for equitable relief from judgments differ from the principles governing contracts and *109deeds. That this is not so is shown by Restatement (Second) of Judgments § 67, comment b (1982):
b. Excusable neglect. The first requirement is that the initial failure to respond to notice of the action be plausibly explained. This requirement is commonly referred to as “excusable neglect,” although that seems a misnomer because excusing the neglect depends not only on the circumstances of the initial failure to respond but also on the other conditions stated in this Section. At any rate, what must be shown is that the failure to respond was attributable to mishap and not indifference or deliberate disregard of the notice....
I cannot envisage a quotation which is more appropriate to describe the situation in this case.
Also consistent with the authorities just cited, and supportive of the proposition that grounds for equitable relief from judgments are similar to those involving contracts and deeds, is Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565 (1931). There a man had deeded 12 acres of land to his son before he died, out of a larger tract which he owned. On his subsequent death his heirs filed a partition suit in which the son was named as a defendant because he had a claim against the estate and declined to join as plaintiff. The attorney who prepared the petition included the son’s 12 acres in the land description and the son allowed judgment in partition to be entered, assuming that the plaintiffs’ attorney had described the land correctly. Final judgment was entered directing partition of property including the 12 acres. The 12 acres were sold and conveyed to another party. We held that the son was entitled to equitable relief against the final judgment in spite of his negligence in not checking the description. The opinion stated that this negligence was “superinduced” by the plaintiffs’ attorney.
It is plain from the cases cited that the mistake of defendant’s counsel does not bar the relief now sought, if it is otherwise available in equity. Were the law otherwise, Sprung I would have been an exercise in futility, and should have simply sustained the default judgment, as there suggested by Judge Rendlen.
3. The Effect of Plaintiff’s Counsel’s Conduct
I can understand concern about the finality of judgments if any judgment could be opened up without limit simply on a finding of mistake or inadvertence. Contrary to the suggestion in the concurrence, this record presents no such danger. Equity has an answer for this concern in the requirement that mistake, in order to justify equitable relief, must be mutual. The cases consistently hold that the mistake of one party is mutual if the opposing party knows of the mistake.
Plaintiff’s counsel’s own testimony shows that he was perfectly well aware of what had happened when he received communications from defendant’s counsel on March 23 and March 29, 1985. He knew that counsel was proceeding with the defense of the case, on the mistaken assumption that it was properly pending, and that the extension papers must not have reached him or the courthouse. He knew that if defense counsel were alerted, the default judgment would probably be set aside as of course. Vandergriff, supra. He also knew that if the situation remained the same until April 10 had passed, the default would be infinitely more difficult to set aside. Knowing these circumstances, he deliberately refrained from answering his mail, or even from acknowledging the communication. His conduct should shock all right-thinking lawyers.
The Court should not hesitate to say that this kind of conduct is unacceptable in our profession. The processing of civil litigation requires that lawyers deal with each other in accordance with the highest standards of trust and candor. The two communications called for a response within a reasonable time, which in the setting of this case means “without delay.” Perhaps counsel did not have a duty to tell his opponent in so many words that he had taken a default, but at the very least he could dictate a letter saying, “we have no *110record of your firm’s involvement in the case.”
I accept the proposition that a lawyer has a duty to advance his client’s interest by all honorable means, and - would reject any suggestion that “professional courtesy” should prevail over the lawyer’s duty to his client. I would like to be remembered as a lawyer who went all out for his clients. But I would stop short of taking advantage of a mistake known to me. Nor would I sanction a situation in which the Court permits other lawyers to get away with conduct which I consider the legal equivalent of fraud. See Columbian National Life Insurance Co. v. Black, 35 F.2d 571, 574 (10th Cir.1929). This Court, in the last analysis, sets the standards which Missouri lawyers must observe. It should not allow this plaintiff and his attorney to profit from deceptive conduct or deceptive silence.
In one of the earliest treatises on legal ethics the late Judge George Sharswood, sometime Chief Justice of Pennsylvania, speaks as follows:
Let [the reader] shun most carefully the reputation of a sharp practitioner. Let him be liberal to the slips and oversights of his opponent whenever he can do so, and in plain cases not shelter himself behind the instructions of his client. The client has no right to require him to be illiberal — and he should throw up his brief sooner than do what revolts against his own sense of what is demanded by honor and propriety.
Sharswood, An Essay on Professional Ethics, 73-74 (6th Ed.1930).
We should require lawyers to comply with this standard, not only as a matter of professional courtesy, but as a positive rule of law. Here there was a duty to reply to the correspondence, and, since there was a critical limit, to make some sort of response within that time limit. Lying in wait until the response was stripped of its meaning should not be countenanced.
But we do not have to argue on the basis of special rules for the legal profession. I do not really believe that plaintiff’s counsel’s conduct would be acceptable in the world of commerce. See Appendix. In similar situations the courts have recognized equitable remedies. In the traditional casebook exemplar, Columbian National Life Insurance Co. v. Black, supra, 35 F.2d 571 at 574, the court said:
When [the insured] received the policy he either did or did not notice the error. If he did not notice it, the mistake was mutual. If he did notice it and said nothing, he was guilty of such inequitable conduct as to amount to fraud.
Here too there is conduct which a court of equity should hold to be the legal equivalent of fraud. But we do not have to characterize the conduct as fraudulent. Equity also gives relief for “mutual mistake,” which includes the mistake of one party, known to the other.
The Restatement (Second) of Judgments § 67 comment c states as follows:
If the party obtaining the [default] judgment was on notice of facts indicating the neglect by the attorney or insurer, that is a factor weighing in favor of relief.
Williston on Contracts, Vol. 12 at 382 (3d Ed. (Saeger) 1970), comments:
Unilateral mistake, even apart from knowledge of the other party to the transaction of the mistake, has been held in some cases to justify relief; and it has been held with undeniable justice that mistake by one party and knowledge of the mistake by the other will justify relief as fully as mutual mistake. (Emphasis added).
And Pomeroy’s Equity Jurisdiction, supra, § 847, puts the issue in the following language:
Whatever be the effect of a mistake pure and simple, there is no doubt that equitable relief, affirmative or defensive, will be granted when the ignorance or misapprehension of a party concerning the legal effect of a transaction in which he engages, or concerning his own legal rights which are to be affected, is induced, procured, aided, or accompanied by inequitable conduct of the other parties. It is not necessary that such ineq*111uitable conduct should be intentionally misleading, much less that it should be actual fraud; it is enough that the misconception of the law was the result of, or even aided or accompanied by, incorrect or misleading statement, or acts of the other party.
That these propositions are applicable in Missouri is clearly shown by the cases cited in Part 2 of this opinion. A negligent mistake will not bar equitable relief.1
In 17 Couch, Insurance (2d Ed.1983) § 66:36, the author discusses the equitable remedy of reformation of insurance contracts, as follows:
Where the mistake of one party is combined with the knowledge of the other party that the first party has made a mistake, there is generally sufficient ground for reformation even though the mistake that was made was merely unilateral. In sum, the effect is to hold that when the other party proceeds with the knowledge that the first party is laboring under a mistake, his conduct is “inequitable” and therefore warrants reformation. ...
Neither the principal opinion nor the concurring opinion shows why these authorities are not pertinent and controlling under the undisputed facts. The information that plaintiffs counsel’s conduct is immaterial in an equitable action is not supported by any authority I can find.
The principal opinion cites Barney v. Suggs, 688 S.W.2d 356 (Mo. banc 1985), for the proposition that an attorney has no obligation to advise the opposing party or his counsel that he has taken a default judgment. That case has absolutely no application to the present situation because there was no indication whatsoever that plaintiff’s counsel knew that the defendant had retained counsel, or had any communication with or from counsel. It appears, rather, that the defendant himself misplaced the summons and the petition and failed to notify his insurance carrier. The case simply holds that no appeal could be taken from the default when no motion to vacate had been filed.2
Totally inapplicable is Friedman v. The Caring Group, Inc., 750 S.W.2d 102 (Mo.App.1988). Friedman held nothing more than that the defaulting defendant was not entitled to having a default judgment set aside when he could not demonstrate a meritorious defense. Id. at 105. It is indeed strange that the principal opinion follows the court of appeals blindly in citing as authority a court of appeals decision which does not even analyze or discuss the issue of setting aside a default judgment based upon plaintiff's attorney’s conduct. It is factitious to try to bolster case law in this manner. We must assume that the opinion discussed the matters the court considered controlling and precedentially significant.3 The citation in the principal opinion, then, is spurious.
It is interesting to consider what plaintiff’s counsel would have done if defense counsel had called him on the telephone seeking to arrange a time for depositions. I hardly think that he could properly have agreed on a date, without advising counsel that he had taken a default.4 This example *112differs only in degree and not in kind from the actual situation before us.
It has been suggested, unfortunately, that plaintiffs counsel was justified in doing as he did because his client might have sued him for malpractice.5 We should certainly take this occasion to say so all can hear that communications between opposing counsel are a part of the normal practice of law, essential in the orderly handling of litigation, and that a lawyer cannot subject himself to malpractice liability by acting honorably toward his forensic opponents.
Judge Covington professes to be “sympathetic,” but foresees dire consequences both as to defaults and in other cases if the rules on setting aside judgments in equity are relaxed. Equity courts over the years have anticipated such problems, but have had no trouble in applying the concepts of mutual mistake and extrinsic fraud so as to do equity to all. See Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945). The writer does not cite the precedents found to be so compelling, and I cannot find them.
The conduct of plaintiffs counsel, at the very least, demonstrates a mutual mistake authorizing equitable relief.
4. Equity for the Plaintiff
The principal opinion does not reach the question whether a setting aside of the judgment is fair and equitable from the plaintiffs standpoint. The question is easily answered because the uncontradicted record shows that the plaintiff knew of his lawyer’s conduct and, according to his counsel’s testimony, directed it. He is thus fully chargeable with any inequity or impropriety in what his attorney has done. He is entitled to his day in court, but this connotes a trial. Default is an extraordinary procedure designed to protect and maintain the processes of the court. The plaintiff is only an incidental beneficiary of the default. He had the opportunity for an undelayed trial following Judge Adolf’s initial order. He took the first appeal, and there is no inequity in binding him by the final result of the appellate process.6
5. Concluding Observations
It is also important to consider the very large judgment, the relatively slight error, and the short time within which the answer was filed, and to balance these against the plaintiff’s counsel’s manifestly inequitable conduct.
On this point the Restatement notes:
[T]he decision involves taking account of several incommensurable factors, some relating to the particular case and others to the larger system of administered justice. The factors relating to the particular case include the magnitude and consequences of the judgment, the relative clarity with which it appears the judgment was unjust, the relative fault of the parties ..., the requirements of diligence ..., and the equities in the interests in reliance. (Emphasis added).
Restatement (Second) of Judgments § 74 comment g.
I cannot summarize better than Judge Robert E. Crist of the Missouri Court of Appeals did at an earlier stage of this case:
A default judgment taken after a defendant has negligently failed to file responsive pleadings becomes a valid, enforceable judgment absent a timely appeal and absent unusual circumstances. I believe there was an unusual circumstance in this case — plaintiff’s knowledge and concealment of defendant’s negligence within sufficient time to have prevented the judgment from becoming final. Plaintiff had the “last clear chance” to prevent defendant from being in default. A plaintiff should not be unjustly *113enriched by defendant’s negligent failure to plead where plaintiff has actual knowledge of such negligence and has the means to avoid the finality of a default judgment. I believe the consequences to this defendant of a final, default judgment, when compared to the consequences to this plaintiff of having to prove his case, demand a trial on the merits.
It will not do to say that the balancing of the equities is for the trial court and not for this Court, first, because the facts are not in dispute, and, second, because it is our primary responsibility to formulate and to enhance standards for the legal profession.7
I would vacate the default judgment and remand so that the case may proceed to trial.
APPENDIX
(1) A and B are negotiating a complicated contract, involving many provisions. Each is represented by counsel. A’s counsel prepared a proposed contract whereupon B’s counsel prepared a revised, signed draft as a counter offer. Several drafts were exchanged in this manner. A’s counsel now submits a “final offer.” All prior drafts included a paragraph in which B agreed to pay A $100,000 for certain items. No question had been raised about this paragraph. In the “final offer,” however, A’s counsel mistakenly included a figure of “$100.00” for “$100,000.” B’s counsel reports this apparent mistake to his client who instructed him, “Say nothing about this. He’s signed. I’ll sign the contract as it is.” May B’s counsel legally and ethically refrain from advising A’s counsel of the mistake?
(2) Attorney A represents B bank is the trustee of a first deed of trust securing a note held by the hank. There are junior deeds of trust, but the public record does not show who holds the notes secured by the junior deeds of trust. A, at the direction of B bank, publishes proper notice of a trustee’s sale, to be held Tuesday, September 12, 1989. On Wednesday, September 6, 1989, A received a letter from X, who advises him that he now owns the note secured by the second deed of trust and continues, “If you will advise me of the outstanding balance on the first deed of trust, I will make full payment.” A reports this to the president of B bank, who instructs him, “Don’t answer the letter until after the sale.”
In his dissenting opinion in the court of appeals, Judge Karohl speaks as follows:
What of the instructions of plaintiff to plaintiff’s counsel? We need not consider or decide whether such conduct alone justifies the court awarding a new trial in a separate equitable proceeding. The burden is upon defendant to prove the three elements of meritorious defense, good reason or excuse, and no injustice to plaintiff. However, plaintiff’s instructions are not totally irrelevant to defendant’s proof of good reason or excuse for the default. The default judgment was not a final judgment until April 10, 1985. However the trial court which entered the default judgment was entitled to the benefit of plaintiff’s knowledge that a “late” answer was filed by defendant who obviously was not aware of the judgment. No client has authority to bind and no attorney is bound by any instructions of a client not to communicate with the court regarding matters which are on file with the court but which may not be actually known. It is unlikely that a trial judge, would not have promptly known that an answer was filed twelve days after the entry of a $1,500,000 default judgment in any rural circuit in this state. Without actual notice it is likely that such event, the filing of an answer after default, would not come to the attention of a judge in St. Louis City, St. Louis County, Jackson *114County, and perhaps Greene County. What Judge Adolf would have done, in terms of good cause, under the authority of Rule 75.01 is obvious because of the subsequent order setting aside the default judgment on equitable grounds. If there was no duty to the court by defendant’s counsel then the legal system which does not favor defaults, suffers. Further default judgments will not be freely granted, unless, there is a duty to call that late filing of and answer to the attention of the court. This arises from the fact that the default was granted because it appeared the defendant ignored the court summons. Breach of the duty does not justify a new trial in an equitable proceeding but it is relevant in considering whether defendant’s mistake led to a final judgment. On the present undisputed facts and findings of the trial court, the failure to inform the trial court of the answer ignored the conditions under which the default judgment was granted and the filing supports a finding of neither neglect nor inattention.
It need not be decided whether plaintiff’s instructions to his counsel were mandatory under our practice. Those instructions had no application and should have had no application to the present case. There is no fact dispute that: (1) plaintiff’s counsel did not inform the trial court of the answer within the thirty day period after judgment, (2) the trial court had no such knowledge within the thirty day period; and, (3) the trial court later set aside the judgment on equitable grounds. A client is not entitled to order counsel not to communicate with the court.
. Moreland v. State Farm Fire and Casualty Co., 662 S.W.2d 556, 563 (Mo.App.1983); Cameron State Bank v. Sloan, 559 S.W.2d 564, 567-68 (Mo.App.1977); Berry v. Continental Life Insurance Co., 224 Mo.App. 1207, 33 S.W.2d 1016, 1018 (1931); New York Life Insurance Co. v. Gilbert, 215 Mo.App. 201, 256 S.W. 148, 151 (1923).
. Judge Covington’s suggestion that my approach would justify the reopening of Barney v. Suggs, 688 S.W.2d 356 (Mo. banc 1985), is utterly unjustified. Again, the successful party would be protected because the mistake was not mutual.
. More interestingly, the only reference in Friedman to the plaintiffs’ attorney’s conduct supports the proposition I now advocate:
Counsel for plaintiffs stated in his brief here that he extended [defendants’ attorney] every reasonable "professional courtesy.” There are members of the bench and bar who can remember when that phrase would have included advance warning to a dilatory attorney adversary of intent to seek a default and immediate notice that one had been obtained.
Friedman, supra, at 104 n. 1 (emphasis added).
. Perhaps lawyers must confront their opponents face to face or by telephone instead of using the mails for routine notices. Clients of course would bear the extra cost.
. Sprung v. Negwer Materials, Inc., 727 S.W.2d 883, 893 (Mo. banc 1987) (Rendlen, J. concurring) and Judge Rendlen’s concurrence in this case; unpublished opinion of Dowd, J. for the court of appeals in that case. Nor need lawyers fear that they will be subject to professional discipline if they refuse to follow instructions such as this client gave.
. A court of equity should be entitled to consider some allowance to the plaintiff on account of the trouble occasioned by the defendant’s mistake, such as, e.g., the cost of appearances for the interlocutory and final default judgments.
. I would not accept any suggestion that Rule 74.05(c), adopted after the default judgment in this case was entered, renders the present controversy unimportant. In some of our circuits cases are not reached for trial for two years. If we sanction such conduct, there are lawyers who will try to keep their opponents in ignorance for a year. Also, a case might be dismissed for procedural fault, and a knowing defendant might try to conceal the situation for a year, by disregarding inquiries or offers.