"An appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction, and is his first act therein." Sharp v. Sharp, 196 Kan. 38, Syl. p 1, 409 P.2d 1019 (1966). Although it was important historically whether an appearance was general or special, see Green v. Green, 42 Kan. 654, 22 P. 730 (1889) (special appearance to contest jurisdiction does not give jurisdiction over the defendant); Hanson v. Hanson, 86 Kan. 622, 122 P. 100 (1912) (an appearance other than to challenge jurisdiction waives all defects and confers jurisdiction without service of summons), such a procedural distinction has now lost its significance.
However, the appellate courts of our state have on several occasions considered what is an appearance for purposes of notice requirements and the entry of a default judgment under the code of civil procedure, K.S.A. 60-255(a). See Jones v. Main, 196 Kan. 91, Syl. p 3, 410 P.2d 303 (1966) (litigant who has apprised opponent, through court, of his denial of the claim against him has appeared); Sharp v. Sharp, 196 Kan. 38, Syl. p 2, 409 P.2d 1019 (1966) (request for bill of particulars constituted appearance); Midland Bank of Overland Park v. Rieke, 18 Kan.App.2d 830, 834, 861 P.2d 129 (1993) (informal contacts with plaintiff not an appearance); Hood v. Haynes, 7 Kan.App.2d 591, Syl. p 1, 644 P.2d 1371 (1982) (informal contact with the court sufficient to constitute an appearance). The factual situation most similar to the case before us is Midland Bank, 18 Kan.App.2d 830, 861 P.2d 129.
The two major cases in Kansas construing the word "appearance" employ a similar analysis. In Sharp v. Sharp, 196 Kan. 38, 40, 409 P.2d 1019 (1966), the court held a written request for a bill of particulars in an action for separate maintenance constituted an appearance, using these considerations: "Broadly speaking, an appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction and is his first act therein (6 C.J.S., Appearances, § 1; 5 Am.Jur.2d, Appearance, § 1).
In conclusion, the law favors trial of causes on the merits and looks with disfavor on default judgments. Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019 (1966). However, a default judgment (or dismissal) may become necessary when inaction of a party frustrates the orderly administration of justice.
Default judgments are not the favorites of the law. Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019 (1966); Springer Corporation v. Herrera, 85 N.M. 201, 510 P.2d 1072 (1973); Ryan v. Collins, 481 S.W.2d 85 (Ky. 1972); Lambert Bros. Inc. v. Tri City Construction Co., 514 S.W.2d 838 (Mo.App., 1974). Lindsey v. Drs. Keenan, Andrews and Allred, 118 Mont. 312, 165 P.2d 804, 163 ALR 487 (1946); Rogers v. Lyle Adjustment Co., 70 N.M. 209, 372 P.2d 797 (1962); Westring v. Cheyenne National Bank, 393 P.2d 119 (Wyo., 1964).
Defaults are not favored in law. ( Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019; Wilson v. Miller, 198 Kan. 321, 424 P.2d 271.) Judgment by default becomes necessary when the inaction of a party frustrates the orderly administration of our judicial process.
We conclude that plaintiff's motion to vacate and/or modify the judgment of dismissal in the instant case, ostensibly used as a means to obtain reconsideration of a judgment, decree or order finally disposing of the action before trial under Rule 12(b) (6) is within the coverage of Rule 59(e) and, if served not later than 10 days after entry of the judgment, decree and order, terminates under Rule 73(a) the running of the appeal time. Woodham, supra; Sharp v. Sharp, 1966, 196 Kan. 38, 409 P.2d 1019; 3 Barron Holtzoff, Federal Practice and Procedure, § 1308. The denial of her motion on April 21, 1969 by the second justice on grounds of intracourt policy did not aggrieve the plaintiff as the motion was subject to dismissal for untimeliness, since the service of her motion had been made on January 10, 1969, a date much beyond 10 days after the dismissal judgment of December 12, 1968.
( Bass v. Hoagland, 172 F.2d 205, cert. den. 338 U.S. 816, 94 L.Ed. 494, 70 S.Ct. 57; Ken-Mar Airpark Inc. v. Toth Aircraft Accessories Co. et al., (1952 D.C. Mo.) 12 F.R.D. 399; Hoffman v. New Jersey Federation, Etc., 106 F.2d 204; Zaro v. Strauss, 167 F.2d 218; Interstate Commerce Commission v. Smith, 82 F. Supp. 39.) Of similar tenor are decisions from numerous state jurisdictions which have been collated and are shown in the annotation commencing at page 837 in 51 A.L.R.2d. Attention is also invited to the case of Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019, in which we discussed the meaning of 60-255 ( a), supra, in connection with the entry of a default judgment in a divorce proceeding and there held that the defendant had sufficiently "appeared in the action" to entitle him to the three-day written notice required by the statute. We are cognizant of the plaintiffs' complaint that the trial court should have entered a finding that this appeal had been abandoned.
Neither the limited actions code nor the code of civil procedure defines either term, but our Supreme Court has defined appearance as follows: "Broadly speaking, an appearance . . . [is] an overt act by which a party comes into court and submits himself to its jurisdiction and is his first act therein." Sharp v. Sharp, 196 Kan. 38, 40, 409 P.2d 1019 (1966).
The law favors the trial of claims on the merits. Sharp v. Sharp , 196 Kan. 38, 41-42, 409 P.2d 1019 (1966). Thus, although K.S.A. 2020 Supp. 60-241(b) provides district courts with the statutory authority to dismiss a suit for failure to prosecute, "dismissal of a suit is a sanction generally reserved for extreme cases."