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."
Moreover, the law favors a trial on the merits, and the granting of a default judgment denied Father the opportunity to both challenge the State's evidence and present his own. See Sharp v. Sharp , 196 Kan. 38, 41-42, 409 P.2d 1019 (1966). Instead, the adjudication finding was initially based merely on Father's nonappearance and then only on the unproven allegations contained in the State's petition and the supporting application.
See Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978) (“[A] court should resolve any doubt in favor of the motion [to set aside a default judgment] so that cases may be decided on their merits.”); Sharp v. Sharp, 196 Kan. 38, 41–42, 409 P.2d 1019 (1966) (“The law favors trial of causes upon the merits and looks with disfavor upon default judgments.”); McDaniel v. Southwestern Bell, Inc., 45 Kan.App.2d 805, 809, 256 P.3d 872 (2011), rev. denied 293 Kan. 1107 (2012) (“It is the long-standing policy of our courts that the law favors the determination of disputed claims on the merits.”). Absent substantial prejudice to a party, the courts are reluctant to impose judgment in that party's favor because of an opposing party's initial failure to comply with a procedural rule, since that ignores the merits of the underlying legal dispute.
In short, “[t]he law favors trial of causes upon the merits and looks with disfavor upon default judgments.” Sharp v. Sharp, 196 Kan. 38, 41–42, 409 P.2d 1019 (1966). The irony is almost perverse.
We must point out that when parties to a lawsuit have sought default judgment our courts have routinely held that failure to comply with the 3-day notice requirement constitutes reversible error. For example in the case In re Marriage of Thompson, 17 Kan. App. 2d 47, 55-57, 832 P.2d 349 (1992), this court reversed a child support order granted without the required notice. See also Sharp v. Sharp, 196 Kan. 38, 41-42, 409 P.2d 1019 (1966) (holding default judgment without required notice and subsequent refusal to set aside judgment constitutes reversible error); Wellsville Bank v. Sutterby, 12 Kan. App. 2d 585, 588, 752 P.2d 700 (1988) (holding failure to comply with 3-day notice renders judgment voidable and justifies setting judgment aside); Keiswetter, slip op. at 4. Perez-Lambkins' arguments are unpersuasive.
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.
"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.
In Simmon, our court reversed a judgment entered on the pleadings for the trial court's failure to allow defendant to file an answer out of time, noting that the trial court "could not" have granted a default judgment because the three-day notice of K.S.A. 60-255(a) had not been given. Simmon was a direct appeal by the losing defendant and the issue whether the judgment was void or voidable simply was not reached. See also Sharp v. Sharp, 196 Kan. 38, 409 P.2d 1019 (1966); Hood v. Haynes, 7 Kan. App. 2d 591, 598, 644 P.2d 1371 (1982). Rather, we find this case similar to Becker v. Roothe, 184 Kan. 830, 339 P.2d 292 (1959), which was an appeal from a trial court's order refusing to open a default judgment for the trial court's failure to take evidence of plaintiff's claims for unliquidated damages in compliance with a former default judgment statute, G.S. 1949, 60-3109.
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.