The opinion
Dissenting Opinion
Sullivan, J.
I must respectfully dissent from the majority opinion. Basically, the cause appealed presents two questions. First: Was appellant Harding’s motion for change of judge timely filed? Second: Was appellants’ appeal timely perfected?
*534 I concur with the conclusion of my associates that the motion for change of judge was timely filed but since such conclusion is dictum, its reasoning need not be considered here.
With reference to the basic question concerning the propriety of a motion for new trial in this cause, it is readily conceded that such motions have been held inappropriate where there has been no trial. Meier v. Social Security Administration (1957), 237 Ind. 421 , 146 N. E. 2d 239 ; Aldridge v. Aldridge (1968), 143 Ind. App. 529 , 233 N. E. 2d 781 . The difficulty with this general rule is that in practice there is no uniformly applicable definition of a “trial”.
In Indiana, a “trial” is defined generally as follows:
“The trial is a judicial examination of the issues, whether by law or of fact, in an action,” Acts 1881 (Spec. Sess.), ch. 38, § 371, p. 240, Burns’ (1968 Repl.), Section 2-1901,
and it has been held that there was no trial in the following situations: When judgment has been entered on default, State ex rel. Hobbs v. Claycombe, Judge (1954), 233 Ind. 247 , 118 N. E. 489 ; where judgment was entered upon failure to plead over after the court sustained a demurrer, Joyner v. The Housing Authority of the City of Gary (1959), 130 Ind. App. 167 , 162 N. E. 2d 685 and Schneidt v. Schneidt (1919), 69 Ind. App. 666 , 122 N. E. 588 ; but see Louisville, New Albany & Chicago Railway Co. v. Reynolds (1889), 118 Ind. 170 , 20 N. E. 711 ; where there is a dismissal of the cause, Meier v. Social Security Administration, supra; where a motion for summary judgment has been sustained, Aldridge v. Aldridge, supra; and where the trial judge died before entering required findings and conclusions thereby voiding the trial proceedings, Dawson v. Wright, Mayor (1955), 234 Ind. 626 , 129 N. E. 2d 796 .
I feel that the cases last above cited, being those relied upon by Appellee Brown, some of which are cited in the majority opinion, are readily and properly distinguishable from *535 the factual situation here presented. The trial court below considered, in addition to the Petition of Appellee, the pleadings, briefs and decree in a different (though related) action in a different court. It did so in making its 19 page “Findings of Fact, Conclusions of Law and Judgment”. Other than the Petition, the matters thus considered were not offered by any party to the adversary proceedings. Such matters were therefore before the court only in the form of extra-judicially acquired “evidence”. Since the Court below quite clearly and unmistakably examined the issues both legally and factually, it conducted a “trial”. See Burns’ § 2-1901, supra.
In any event, where it is uncertain whether trial court proceedings are or are not a “trial”, the party desiring appellate review must, according to the majority, either be clairvoyant as to the correct choice of procedure or run the risk of precluding such review. In State v. Allison (1956), 235 Ind. 294 , 133 N. E. 2d 469 , and Bahar v. Tadros (1955), 125 Ind. App. 457 , 126 N. E. 2d 791 (cited in the majority opinion), the proceedings were held to be a trial and the appeals were dismissed by reason of appellants’ failure to file motions for new trial. See also, Farmers Loan & Trust Co. v. Manning (1968), 142 Ind. App. 519 , 236 N. E. 2d 52 (rehearing denied) ; whereas in Aldridge v. Aldridge, supra, the proceedings were held not to constitute a trial and appellant erroneously filed a motion for new trial causing the time to expire for perfecting his appeal. The dilemma is especially apparent in the instant case since the trial court overruled the petition for change of judge and entered its decision and judgment on the same day.
In Zumpfe v. Piccadilly Realty Company (1938), 214 Ind. 282 at 287 , 13 N. E. 2d 715 , the Supreme Court elaborated upon the general definition of a “trial” with reference to Motions for new Trial when it said:
“It is not necessary, to justify a motion for a new trial, that the issues be formed by a complaint and a demurrer, *536 or by a complaint and answer. There has been a trial, in contemplation of the statute authorizing a new trial, when there has been a ‘judicial examination of the issues, whether of (sic) law or of fact, in an action.’ ”
In this connection it is important to note that the primary purpose of a motion for new trial is to permit the trial court to correct its own errors, if any, and only incidentally does such motion constitute an essential precedent to appellate review. Additionally, it may be stated as a well-recognized policy that, where possible, all causes on appeal should be decided upon their merits with increasing regard for the substance of the law in precedence to ritualistic form. Starkie v. State (1943), 113 Ind. App. 589 , 49 N. E. 2d 968 ; Security Savings & Loan Ass’n. v. Morgan (1939), 106 Ind. App. 437 , 20 N. E. 2d 707 .
I think it unnecessary and perhaps unwise to make such sweeping changes as in at least one other jurisdiction. See Carney v. Simmonds (1957), 49 Cal. 2d 84 , 315 P. 2d 305 , as noted in 10 Stanford Law Review 581. It is appropriate and desirable, however, to foster substantive review by trial courts without blind adherence to formalistic requirements. See Indiana & Michigan Electric Co. v. Louck (1962), 243 Ind. 17 , 181 N. E. 2d 855 . A litigant should not be required to claw his way through an uncharted procedural morass merely to obtain review of trial court action. Compare Newton v. Vincennes University (1968), 142 Ind. App. 391 , 235 N. E. 2d 84 .
By reason of the foregoing, I believe that Appellee’s Motion to Dismiss should be overruled and that the Court should, upon the merits, reverse and remand the cause with instructions to expunge its Findings, Conclusions and Judgment and to grant Appellant Harding’s Motion for Change of Judge.
Note. — Reported in 247 N. E. 2d 536 .