              IN THE SUPREME COURT OF IOWA
                                No. 11–0877

                           Filed November 2, 2012


LEONARD JACK,

      Appellant,

vs.

P AND A FARMS, LTD., d/b/a
CROOKED CREEK SHOOTING
PRESERVE,

      Appellee.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Washington County,

Joel D. Yates, Judge.



      Plaintiff seeks further review of court of appeals decision affirming

district court’s entry of default judgment when he failed to personally

appear for trial but his counsel was present to proceed on his behalf.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.



      James K. Weston II of Tom Riley Law Firm, Iowa City, for

appellant.



      Heather L. Carlson of McDonald, Woodward & Carlson, P.C.,

Davenport, for appellee.
                                       2

ZAGER, Justice.

         In this case we are called on to decide whether a trial court’s entry

of a default judgment under Iowa Rule of Civil Procedure 1.971(3) is

justified when a party fails to appear personally for trial but the party’s

attorney is present and able to proceed in the client’s absence. The court

of appeals affirmed the district court’s entry of a default judgment due to

the plaintiff’s failure to appear personally at the time of his scheduled

trial. We granted further review. We now vacate the opinion of the court

of appeals, reverse the judgment of the district court, and remand for

trial.

         I. Factual and Procedural Background.

         The relevant facts in this case are undisputed. In December 2005,

Leonard Jack was an employee of P and A Farms, Ltd., doing business as

Crooked Creek Shooting Preserve (Crooked Creek). Crooked Creek is a

game preserve located in Washington County, Iowa, and its business

activities include raising mallard ducks used for training hunting dogs

and for human consumption. As an employee of Crooked Creek, Jack’s

responsibilities included caring for the ducks, feeding the ducks,

maintaining the duck pens, and cleaning ducks for customers.

         Crooked Creek housed approximately 3400 ducks in a 100 foot by

200 foot pen which was exposed to the elements but covered by a net.

On December 20, 2005, the pen was covered in snow and ice.               Jack

slipped on the ice and fell while carrying two five-gallon buckets of grain.

As a result, he sustained a shoulder injury.         Jack received extensive

treatment for the injury including surgery at the University of Iowa

Hospitals and Clinics. On May 24, 2007, Jack filed a petition at law and

jury demand in the Washington County District Court alleging medical
                                        3

expenses of approximately $47,000. 1          He also alleged that his injury

occurred within the course and scope of his employment and that at the

time of his injury Crooked Creek did not have workers’ compensation

liability insurance as required by law.          Therefore, under Iowa Code

section 87.21 (2005), it was presumed that his injuries were the direct

result of, and grew out of, the negligence of Crooked Creek and that such

negligence was the proximate cause of his injuries.                 Jack alleged

damages for past and future medical expenses, past and future lost

wages, past and future physical pain and suffering, and past and future

loss of full body.

         Trial was originally set for April 1, 2008. On January 25, 2008,

Jack’s counsel served requests for admissions on Crooked Creek, which

did not timely respond. 2      However, on February 8, 2008, counsel for

Crooked Creek filed a motion to withdraw from representation and a

motion to continue. These resisted motions were granted by the court,

which set a new trial date for December 16, 2008.              New counsel for

Crooked Creek did not file an appearance until October 24, 2008—over

seven months later. Various motions were subsequently ruled on by the

court.     On November 7, 2008, the court entered an order denying
Crooked Creek’s motion to continue the trial and ordering Jack to make

himself available for deposition.       The court granted Crooked Creek’s

motion to file untimely responses to the January 25 request for

admissions and ordered the responses be filed by November 18.                  On

         1The
            amount incurred for medical expenses reflected in Jack’s request for
admissions and in his appellate brief is $44,697.72. Therefore, we will assume that
$44,697.72 is the amount of medical expenses Jack seeks to recover.
         2Pursuantto Iowa Rule of Civil Procedure 1.510(2), the matters upon which
Jack requested admissions were deemed admitted when Crooked Creek failed to
respond within thirty days.
                                            4

November 20, Jack filed a motion to reconsider the district court’s order

requiring him to make himself available for deposition in Washington

County, Iowa, by December 1.               Therein Jack asserted that he had

recently started a new job in Idaho and traveling to Iowa for both the

December 1 deposition and the December 16 trial would result in him

losing his job.

       On November 25, 2008, Jack filed a motion to remove the case

from the operation of Iowa Rule of Civil Procedure 1.944. 3 The motion

indicated that counsel for both parties agreed a continuance would be in

the interest of justice.      This motion was granted, and the trial in this

matter was continued until June 9, 2009.

       On June 1, 2009, Crooked Creek filed an application to serve

responses to requests for admissions.              Attached to that motion were

responses denying six of the requests in whole or in part.                   The court

granted Crooked Creek’s application upon finding that Jack would not be

unfairly prejudiced.      Trial did not take place as scheduled on June 9,

2009, and the trial was continued and rescheduled no fewer than four

times at the request of each of the parties. By order entered June 24,

2010, jury trial was scheduled to begin on May 3, 2011.

       On May 3, 2011, Jack failed to appear personally for trial. After

the jury was impaneled, a hearing was held outside the presence of the

jury. Jack’s counsel informed the court that it was his understanding

Jack, who had since moved to Idaho, was absent because he was




       3Iowa  Rule of Civil Procedure 1.944 governs dismissal for want of prosecution.
Subsection 2 states, in part, “All cases at law or in equity where the petition has been
filed more than one year prior to July 15 of any year shall be tried prior to January 1 of
the next succeeding year.” Iowa R. Civ. P. 1.944(2).
                                      5

“stranded.” He also indicated he had notified Jack of the trial date by

letter on June 24, 2010, the same day the trial date was scheduled.

      Jack’s counsel requested a continuance, and Crooked Creek

moved to dismiss. After the court denied the motion to continue, Jack’s

counsel resisted the dismissal and argued in the alternative that based

on the statutory presumptions contained in Iowa Code section 87.21,

and the admissions made by Crooked Creek, Jack had already made a

prima facie case of negligence. Therefore, as his attorney, he should be

allowed to proceed to trial without Jack being personally present to

testify. He also requested the opportunity to submit Jack’s deposition

testimony in lieu of his trial testimony.

      The district court granted Crooked Creek’s motion to dismiss and

entered a ruling stating:

             This case was scheduled for a jury trial commencing at
      9:00 a.m. on May 3, 2011. Counsel for the Plaintiff and the
      Defendant appeared; however, the Plaintiff failed to
      personally appear. Plaintiff’s counsel made an oral motion to
      continue the trial to a later date. Defendant’s counsel
      resisted the motion to continue and moved that the case be
      dismissed. The Court notes that this case has been on file
      since 2007, that this trial date has been set for almost a
      year, and that the Plaintiff received notice of the trial date.
      After considering the arguments of counsel, the Court finds
      that the Plaintiff’s motion to continue the trial should be and
      is here by denied and that the Defendant[’]s motion for
      dismissal should be and is hereby granted.

      On May 12, Jack filed a resisted motion to enlarge or amend,

requesting that the district court enter a ruling addressing his counsel’s

proposition to proceed to trial in Jack’s absence. He also requested that

the district court reconsider its denial of his motion for continuance. The

court granted the motion to enlarge or amend and added the following

language to its previous ruling:
                                     6
            This lawsuit was commenced May 24th, 2007. Both
      parties were notified on June 24th, 2010 that the jury trial
      was scheduled to start at 9:30 a.m. on May 3rd, 2011.

             Plaintiff Leonard Jack failed to appear for his jury trial
      on May 3rd. Attorney for Jack orally asked the Court to
      continue the trial minutes before it was to start. Defendants
      resisted any continuance and were ready to proceed. The
      court finds that the attorney for Plaintiff failed to state any
      good cause for continuing the trial.

            Additionally, acting pursuant to Iowa Rule of Civil
      Pro[cedure] 1.971(3), the Court finds Leonard Jack to be in
      default when he failed to be present for trial.

      On June 3, 2011, Jack filed a notice of appeal, and we transferred

the case to the court of appeals. A majority of the three-judge panel of

the court of appeals affirmed the holding that dismissal was appropriate

under rule 1.971(3) and that Jack’s absence prevented Crooked Creek

from cross-examining him, which is essential to a fair trial. The majority

also found that it was within the district court’s discretion to decline to

order a less drastic remedy.      The dissenting judge wrote separately,

concurring in part and dissenting in part. In her view, rule 1.971(3) did

not require dismissal in a case such as this where a party was not

personally present for trial, but his counsel appeared on his behalf and

requested to proceed to trial.

      II. Standard of Review.

      “A decision to grant or deny a motion for default judgment rests in

the sound discretion of the trial court.”      See Wilson v. Liberty Mut.
Grp., 666 N.W.2d 163, 165 (Iowa 2003). Reversal is only warranted upon

a finding that the court’s discretion has been abused. Id. Similarly, we

review a district court’s decision to grant or deny a motion for

continuance for abuse of discretion. Hawkeye Bank & Trust, Nat’l Ass’n

v. Baugh, 463 N.W.2d 22, 26 (Iowa 1990). However, this case turns on

the interpretation of Iowa Rule of Civil Procedure 1.971(3), and we review
                                            7

the interpretation of our rules of civil procedure for correction of errors at

law.   Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 66 (Iowa 2010); see also

Whitley v. C.R. Pharmacy Serv., Inc., 816 N.W.2d 378, 389 n.6 (Iowa

2012) (“When a discretionary decision by a trial court involves an

erroneous interpretation of law, our review is for legal error.”).

       III. Discussion.

       A. Default Judgment Under Rule 1.971(3). A default judgment

is a judgment against the party who has failed to take the next step

required in the progress of a lawsuit. Kirby v. Holman, 238 Iowa 355,

374, 25 N.W.2d 664, 674 (1947).              Iowa Rule of Civil Procedure 1.971

governs default judgments and subsection 3 states, “A party shall be in

default whenever that party . . . [f]ails to be present for trial.” We do not

have any cases interpreting the word “party” as it appears in rule

1.971(3) or indicating whether the rule permits a party’s counsel to

appear on behalf of a party who is not personally present. 4 Nor do we

have any recent cases discussing the entry of default judgment against a

party for failure to be present at trial.

       “Our ultimate goal in construing statutes is to find the true

intention of the legislature.” 5        Iowa Dep’t of Transp. v. Soward, 650
N.W.2d 569, 571 (Iowa 2002). “We look to both the language and the

        4An interpretation of Federal Rule of Civil Procedure 55 governing default

judgments in federal court is not instructive in the case at bar. 28 U.S.C. § 1654 (2006)
definitively provides that “[i]n all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.” Thus, § 1654
affirmatively resolves the issue of whether a party who does not personally appear for
trial may proceed through counsel.
       5We  acknowledge that the Iowa Rules of Civil Procedure are promulgated by this
court in consultation with the Iowa Supreme Court Advisory Committee on Rules of
Civil Procedure. Nonetheless, we apply ordinary canons of statutory construction in
interpreting these rules. See City of Sioux City v. Freese, 611 N.W.2d 777, 779 (Iowa
2000) (“[W]e interpret rules in the same manner we interpret statutes.”).
                                           8

purpose     behind       the   statute.”       Iowa    Comprehensive        Petroleum

Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359,

363 (Iowa 2000). We also consider relevant statutes together and try to

harmonize them.      6   Soward, 650 N.W.2d at 571. “If the legislature has

not defined words of a statute, we may refer to prior decisions of this

court and others, similar statutes, dictionary definitions, and common

usage.” Id.

       Crooked Creek relies on an unreported court of appeals decision in

which that court affirmed a default judgment against a plaintiff who was

absent at the time designated for trial and after the jury had been

impaneled.     Manguno v. Bowden, No. 00–1646, 2002 WL 1840867, *1

(Iowa Ct. App. August 14, 2002). Manguno is distinguishable because

the plaintiff was pro se, and accordingly, nobody was present to proceed

in the plaintiff’s absence.        Id.; see also Krugman v. Palmer Coll. of

Chiropractic, 422 N.W.2d 470, 473, 475 (Iowa 1988) (affirming entry of

default judgment when the party, her experts, and her attorney failed to


       6We note at the outset of our analysis that rule 1.404 governing appearances is

inapplicable to the case at bar. Rule 1.404(2) states:
               The court shall have no power to treat an appearance as
       sufficient to delay or prevent a default or any other order which would be
       made in absence thereof, or of timely pleading. Notice and opportunity to
       respond to any motion for judgment under rule 1.973(2) shall be given to
       any party who has appeared.
        Thus, at first blush, rule 1.404(2) seems to suggest that the appearance of an
attorney on behalf of a party is insufficient to prevent an entry of default judgment
justified under rule 1.971. However, the term “appearance” as it is used in rule
1.404(2) does not address the concept of an attorney showing up for trial on behalf of a
party who is not physically present. Rather, rule 1.404(2) refers to the more legalistic
definition of appearance in which an attorney clearly indicates to the court that he or
she is the attorney “in charge of the case.” See Iowa R. Civ. P. 1.404(1). Jack is not
arguing that his attorney’s formal “appearance” in this case by signing the petition
prevented the court from entering a default judgment under rule 1.971(3). Rather, Jack
is arguing that the district court erred in entering a default judgment under rule
1.971(3) because his attorney was “present for trial” on his behalf.
                                         9

appear for depositions and trial); Langner v. Mull, 453 N.W.2d 644, 647–

49 (Iowa Ct. App. 1990) (affirming entry of default judgment against pro

se party who failed to appear for trial).

      In its brief, Crooked Creek also cites Hebert v. C.F. Bean Corp., a

Louisiana court of appeals decision upholding the trial court’s dismissal

of the plaintiff’s action where, as here, the plaintiff’s counsel, but not the

plaintiff, appeared for trial. 785 So. 2d 1029, 1031 (La. Ct. App. 2001).

We    are    not     persuaded   that   Hebert       supports    Crooked    Creek’s

interpretation of rule 1.971(3). In that case, the court expressly rested

its holding on the fact that “there [wa]s no evidence that Plaintiff’s

counsel was ready to proceed without his client.              Therefore, the mere

appearance of Plaintiff’s counsel [wa]s not enough to defeat the dismissal

. . . .”    Id.     Thus, the Louisiana court provided that dismissal of a

plaintiff’s action for failure to appear personally may be improper where,

as here, the plaintiff’s counsel appears and is ready to proceed on the

client’s behalf. Id.

      Crooked Creek contends, essentially, that our rules of civil

procedure always require a party to be personally present for trial and do

not permit a party to proceed to trial through counsel.                    However,

numerous          cases   demonstrate   that   the    rules     were   intended   to

contemplate a variety of situations in which a party who is not personally

present may, through counsel, proceed to a trial where substantial rights

are adjudicated.

      In Vaux v. Hensal, we held that the trial court properly entered a

default judgment against a defendant who timely filed an answer but

failed to appear for trial. 224 Iowa 1055, 1059, 277 N.W. 718, 720–21

(Iowa 1938). However, in that case “neither the defendant . . . nor his

attorney appeared in court” on the day the case was assigned for trial.
                                      10

Id. at 1056, 277 N.W. at 719. Under instruction of the court, the clerk of

court telephoned the defendant’s attorney and advised him that the case

had been rescheduled for the following day. Id. Despite receipt of this

message, the next day when trial was scheduled to begin, and after the

jury had been impaneled, both the defendant and his attorney again

failed to show up.    Id.    The plaintiff waived the jury, and the court

“entered an order finding the defendant in default for want of appearance

and proceeded to hear plaintiff’s evidence.” Id.

      After the introduction of a portion of the plaintiff’s evidence, the

defendant’s counsel appeared and requested “the default be set aside

and that he be permitted to make his defense to the plaintiff’s claim.” Id.

The court agreed, but the defendant’s attorney declined to proceed when

the court refused to acquiesce in his insistence upon a jury trial. Id. at

1056–57, 277 N.W. at 719.            Thereafter, the plaintiff proceeded to

introduce its evidence to the court, and the court entered a judgment

against the defendant.      Id. at 1057, 277 N.W. at 719.      The defendant

appealed   alleging   the    court   erred   in   entering   the   default   for

nonappearance.     Id. at 1057, 277 N.W. at 719–20.            On appeal we

affirmed. Id. at 1059, 277 N.W. at 721. Vaux is instructive in that it

demonstrates a district court’s authority to sanction a party for failure to

appear for trial. Id. at 1057, 277 N.W. at 720. Notably, however, even

though the defendant was not personally present, the court gave the

defendant’s counsel the option to defend the case in the defendant’s

absence. Id. at 1056–57, 277 N.W. at 719.

      In Myers v. Emke, an inmate filed a civil rights action against the

state. 476 N.W.2d 84, 84 (Iowa 1991). Through counsel, the inmate filed

a motion requesting the court enter an order allowing the plaintiff to be

transported from prison for the trial. Id. The district court denied the
                                      11

plaintiff’s motion.   Id.   On appeal, we affirmed the holding that “[a]n

inmate has no constitutional right to be produced as a witness in his

own civil rights action.”    Id. at 85.    We noted that the “plaintiff’s civil

action d[id] not present any problems that would prevent the trial court

from   adequately     functioning   and    dispensing   justice   in   plaintiff’s

absence.”   Id.   Because the plaintiff’s presence was not “reasonably

necessary” the court “lack[ed] inherent power to order his presence.” Id.

       The holding in Myers rests largely upon the doctrine of separation

of powers, and we discussed our reluctance to invade the province of the

executive branch.     Id. at 86.    Nonetheless, the Myers case provides a

discrete example of a situation in which a party has been not only

permitted, but required, to advance his claim through counsel. Id.

       In Heck v. Anderson, we said “[t]he necessity of the presence of a

party at the trial of a civil action for damages against him is admittedly

not absolute.” 234 Iowa 379, 384, 12 N.W.2d 849, 851 (1944) (quoting

Hellberg v. Warner, 48 N.E.2d 972, 975 (Ill. Ct. App. 1943) (applying

Soldiers’ and Sailors’ Civil Relief Act of October of 1940)); see also

Jamison v. Knosby, 423 N.W.2d 2, 4 (1988) (noting defendant did not

appear personally at trial but his counsel appeared on his behalf); Semler

v. Oertwig, 234 Iowa 233, 242, 12 N.W.2d 265, 270 (Iowa 1943) (noting

that in some circumstances presence of a military serviceman at trial

may be “unnecessary to an adequate protection of his rights”).              This

statement would be at odds with a default judgment rule that always

required a party to appear personally at trial.              Crooked Creek’s

interpretation of rule 1.971(3) is also at odds with numerous trial

scenarios in which it is commonly understood that a party may advance

claims through counsel without being personally present.
                                      12

      For   instance,    both    postconviction    relief   proceedings   and

termination of parental rights proceedings are generally governed by the

rules of civil procedure. See Iowa Code § 822.7 (stating the rules of civil

procedure are applicable to postconviction relief proceedings); In re

Interest of B.G.C., 496 N.W.2d 239, 242 (Iowa 1992) (“Section 600A.7(1)

provides that termination hearings shall be conducted in accordance

with our rules of civil procedure.”).      Nonetheless, we have held that a

postconviction relief applicant has no due process or statutory right to

personally attend the postconviction relief trial. See Webb v. State, 555

N.W.2d 824, 827 (Iowa 1996).

      Similarly, in In re Interest of J.S., our court of appeals held that a

parent’s physical presence is not required at a termination of parental

rights hearing when counsel is present on the parent’s behalf.            470

N.W.2d 48, 52 (Iowa Ct. App. 1991); cf. In re Interest of T.C., 492 N.W.2d

425, 428–29 (Iowa 1992) (finding father was not denied his due process

rights at child-in-need-of-assistance (CINA) adjudicatory hearing due to

fact that father was in county jail at time of service of notice and CINA

proceedings and that it was unlikely that court would have entered order

different from what it did had the father been present). In both of these

situations, one of the parties is often incarcerated, and it is commonly

understood that a party who appears through counsel will not be held to

be in default.

      Also, a rule that required a party to appear personally for trial

would be inscrutable in its application to a party who is not a person but

rather an entity. In Hawkeye Bank & Trust, we held that corporations in

this state are generally required to appear only by lawyer. 463 N.W.2d at

25. If the corporation itself is required to be present for trial, it is wholly

unclear which person or persons would be required to appear on the
                                     13

corporation’s behalf.    Clearly, a corporation represented by counsel

would not be considered to be in default where no employees, officers, or

shareholders showed up for trial. Cf. Kirk v. Madsen, 240 Iowa 532, 534,

36 N.W.2d 757, 758 (Iowa 1949) (“All testimony is undisputed as [the

defendant who owned the company . . .] was represented by counsel at

the trial, failed to appear in person[,] and could not be found to be served

with subpoena.”).

      Numerous state appellate courts that have considered the issue

now before us have interpreted their respective rules of civil procedure to

allow a party to proceed to trial through counsel without actually being

personally present. See, e.g., In re Interest of M.M., 708 So. 2d 990, 992

(Fla. Dist. Ct. App. 1998) (holding the entry of default judgment against

parents in termination proceeding for failing to appear was improper

because the parents appeared through their counsel); Owen v. Healy,

896 A.2d 965, 967–68 (Me. 2006) (“Evidence of a party’s unexplained

failure to appear in person . . . does not justify a default that avoids trial

where, as here, the missing party is represented by counsel at the trial.”);

Rocky Produce, Inc. v. Frontera, 449 N.W.2d 916, 917 (Mich. Ct. App.

1989) (reversing default judgment based on civil defendant’s failure to

appear personally at trial because, “absent a subpoena or order from the

court to appear, a defendant in a civil case is not required to appear in

person for a scheduled trial”); Croes v. Handlos, 30 N.W.2d 471, 472

(Minn. 1948) (“Of course, a defendant may appear and answer

personally, but he must do so either personally or by counsel.”); Ogawa

v. Ogawa, 221 P.3d 699, 707 (Nev. 2009) (where a party “appeared at the

divorce hearing through counsel . . . the district court erred in entering

the default against him”); N.J. Div. of Youth & Family Servs. v. P.W.R.,

983 A.2d 598, 600 (N.J. Super. Ct. App. Div. 2009) (holding that it was
                                     14

improper for trial court to enter default against stepmother based on

failure to appear personally at child abuse fact-finding hearing where her

attorney appeared to represent her interests), rev’d on other grounds, 11

A.3d 844, 847 (N.J. 2011) (noting that lower appellate court “panel

concluded, rightfully, that the default was improper”); In re Brandon A.,

769 A.2d 586, 589 (R.I. 2001) (“defin[ing] an appearance as [a] coming

into court as party to a suit, either in person or by attorney” and holding

that the “Family Court justice’s entry of default against respondent who

was represented by counsel was clearly erroneous” (citation and internal

quotation marks omitted)); LeBlanc v. LeBlanc, 778 S.W.2d 865, 865

(Tex. 1989) (holding there was no default in divorce action because party

who did not appear personally was represented by counsel at trial).

While none of these jurisdictions have a default judgment provision

identical to rule 1.971(3), we find this body of persuasive authority

instructive.

      The preceding precedents demonstrate that when a party and the

party’s representative fail to appear for trial, the decision to grant or deny

a motion for default judgment under rule 1.971(3) rests within the sound

discretion of the trial court. See Wilson, 666 N.W.2d at 165; Krugman,

422 N.W.2d at 473–74.      However, we do not interpret rule 1.971(3) to

permit the entry of a default judgment against a party who fails to appear

personally for trial when the party’s attorney is present and able to

proceed in the party’s absence. Unless subject to a subpoena or court

order, a plaintiff in a civil trial is not obligated to take the stand. Thus,

there is no reason why a plaintiff in a civil trial should be required to

appear personally when his or her presence is not “reasonably

necessary.” See Myers, 476 N.W.2d at 85 (allowing civil trial to proceed

through counsel where presence of incarcerated plaintiff was not
                                         15

“reasonably necessary”); see also Rollins v. Coggshall, 29 Iowa 510, 511

(1870) (“A default can only be taken against one who has failed to comply

with some rule or order of the court.”).

         Through counsel, Jack could have advanced his claim based

entirely on admissions by Crooked Creek which were already in the

record. See White v. Walstrom, 254 Iowa 646, 650, 118 N.W.2d 578, 581

(1962) (“[P]laintiff can make his whole case on defendant’s deposition if

he so desires.       He could always prove his case by statements of

defendant made out of court . . . .”). In this case, Jack would also have

been entitled to rely on the presumptions contained in Iowa Code section

87.21 in the prosecution of his claim. Under these circumstances, Jack

was able to take the next step required in the progress of the lawsuit,

and thus, was not in default. Kirby, 238 Iowa at 374, 25 N.W.2d at 674.

         It was well within the discretion of the district court to decline to

grant a seventh continuance in a case that had been on file for over four

years.     Hawkeye Bank & Trust, 463 N.W.2d at 26 (“Given the broad

discretion vested in district courts to grant or deny continuances, we will

reverse only when that discretion is abused.”). However, we find that the

court’s entry of a default judgment dismissing Jack’s case was based on

an   erroneous     interpretation   of   rule   1.971(3).   We   believe   our

interpretation of rule 1.971(3) is consistent with our general policy in this

jurisdiction “ ‘to allow a determination of controversies on their merits

rather than on the basis of nonprejudicial inadvertence or mistake.’ ”

Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999)

(quoting Whitehorn v. Lovik, 398 N.W.2d 851, 853 (Iowa 1987)); Paige v.

City of Chariton, 252 N.W.2d 433, 437 (Iowa 1977); Wharff v. Iowa

Methodist Hosp., 219 N.W.2d 18, 21 (Iowa 1974) (“The general policy in

this jurisdiction has been to allow trial on the merits.”); Sawyer v.
                                      16

Sawyer, 261 Iowa 112, 117, 152 N.W.2d 605, 608 (1967) (“[T]rials upon

the merits are favored and defaults avoided if fairly possible.”); see also

McQuillen v. City of Sioux City, 306 N.W.2d 789, 791 (Iowa 1981) (“[T]he

drastic action of dismissal should not be ordered in the absence of

willfulness, bad faith or fault.”).

         B. Crooked Creek’s Right to Cross-Examine Jack.             Crooked

Creek concedes that Jack had made a prima facie case on his negligence

claim but contends that it was entitled to rebut the presumption of

negligence established under section 87.21 by cross-examining Jack at

trial.    The court of appeals “agree[d] with Crooked Creek that despite

Jack’s ability to establish a prima facie case under section 87.21, his

absence precluded [Crooked Creek] from cross-examining him, which is

essential to a fair trial.” For this proposition, the court cited our decision

in Avery v. Harms Implement Co., which states, “While the scope of cross-

examination is discretionary, the right to do so is absolute. It is a right

essential to a fair trial.” 270 N.W.2d 646, 650 (Iowa 1978).

         However, in the second subsequent sentence in the Avery decision,

we also stated, “Under our rules, cross-examination is limited to matters

testified to in chief.” Id. Because the proposition below was to proceed

in Jack’s absence, Jack would not have testified in his case-in-chief and

would not have been subject to cross-examination.              See Heinz v.

Heinz, 653 N.W.2d 334, 342 (Iowa 2002) (“The purpose of cross-

examination is to test the veracity of statements a witness made . . . .”).

A party is not denied a fair trial by the denial of the opportunity to cross-

examine a witness who does not give any testimony. The very definition

of cross-examination requires that the witness first be examined on

direct.
                                           17

       Crooked Creek cannot complain that it would have been deprived a

fair trial because of the failure of one of the opposing parties’ designated

witnesses to appear for trial. Crooked Creek may have been entitled to

examine Jack had they subpoenaed him in accordance with Iowa Rule of

Civil Procedure 1.1701(1)(a)(3). 7            However, Crooked Creek did not

subpoena Jack and was required to resort to other evidence to rebut the

presumption of negligence arising under section 87.21. 8                      If a party

wishes to assure the availability of an opposing party to be called as a

       7Because  Jack is a party, rule 1.1701(4)(d)(1)(2), which permits the quashing or
modification of a subpoena requiring a nonparty “to travel more than 50 miles from
where that person resides,” would have been inapplicable.
       8Rule   1.707 governing notice for oral depositions demonstrates that if the
drafters of rule 1.971(3) intended to allow a party to compel an opposing party to testify
at trial without obtaining a subpoena, they certainly knew how to do so. Rule 1.707(4)
provides:
               No subpoena is necessary to require the appearance of a party for
       a deposition. Service on the party or the party’s attorney of record of
       notice of the taking of the deposition of the party or of an officer, partner
       or managing agent of any party who is not a natural person, as provided
       in rule 1.707(1), is sufficient to require the appearance of a deponent for
       the deposition.
        The first sentence of rule 1.707(4) is similar to rule 1.971(3) in that the term
“party” is undefined. However, unlike 1.971(3), it is clear from this rule that the party
himself must personally appear, and the party’s attorney cannot appear at depositions
on his behalf.
        Firstly, the rule implicitly distinguishes between the party and the party’s
attorney by stating service of notice “on the party or the party’s attorney” of the “taking
of the deposition of the party . . . is sufficient to require appearance.” Iowa R. Civ. P.
1.707(4). By juxtaposing the phrase “[s]ervice on the party or the party’s attorney” with
the phrase “taking of the deposition of the party,” the rule forecloses an interpretation
that would permit a party’s attorney to appear on his behalf for depositions. Instead, it
is clear that the deposition of an opposing party himself may occur after he or his
attorney is served with notice.
        Secondly, common sense dictates that a party’s attorney cannot appear on his
or her behalf for a deposition and the party being deposed must personally appear.
Unlike trial, the only thing that occurs at the deposition of a party is the giving of that
party’s testimony. Clearly, an attorney cannot testify on behalf of his or her client.
However, as discussed above, there are numerous instances where it is understood that
an attorney may advance a client’s claims at trial notwithstanding the party’s physical
absence.
                                     18

witness, or the availability of any witness for that matter, the appropriate

procedure to compel the attendance of a witness must be employed.

      IV. Conclusion.

      The district court did not abuse its discretion when it denied

Jack’s motion to continue the trial. However, the district court’s decision

to enter a default judgment against Jack rested on an erroneous

interpretation of rule 1.971(3). Because rule 1.971(3) does not require a

party to appear personally for trial, it was an abuse of discretion to enter

a default judgment against Jack when his counsel was present and able

to proceed to trial on his behalf.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.
