concurring.
I concur with the majority view that exclusive jurisdiction of appellants’ claim lay with the Public Service Commission.
Appellants’ second argument urges that the court’s action in this case should be considered as (1) a ruling on a motion to dismiss, (2) which considered evidence in addition to the pleadings, and (3) therefore was subject to the requirement of findings and reasons applicable to summary judgments. See, e. g., Harris v. Y.W.C.A. (1968), 250 Ind. 491, 237 N.E.2d 242; Swartzell v. Herrin (1969), 144 Ind.App. 611, 248 N.E.2d 38. But see Brutus v. Wright (1975), 163 Ind.App. 366, 324 N.E.2d 165.
The record discloses the following course of events. The defendant Indiana & Michigan filed a responsive pleading consisting of a general denial, an assertion that the court lacked subject matter jurisdiction, an assertion that the complaint failed to state a claim upon which relief could be granted, and a counterclaim. I & M then moved pursuant to Indiana Rules of Procedure, Trial Rule 12(D) for a preliminary determination of the jurisdictional question.1 The trial court set the matter for evidentiary hearing, heard evidence for two days, and then, after consideration, made the following entry:
“The matter of defendant’s application for preliminary determination of jurisdictional issues in this cause having been submitted to the Court, and the Court having examined and considered said application, heard the evidence adduced on said issue and having further examined and considered all exhibits offered and admitted into evidence, all pleadings filed herein and all briefs and memoranda of law submitted by counsel, and having taken the same under advisement and being sufficiently advised in the premises, now determines that all legal issues raised by the pleadings in this cause are within the primary jurisdiction of the Public Service Commission of Indiana and that this. Court lacks jurisdiction over the subject matter of this cause.
IT IS, THEREFORE, CONSIDERED AND ORDERED BY THE COURT, that plaintiffs’ claim and cause of action herein be, and the same is hereby dismissed, and IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED BY THE COURT, that the costs of this action be, and the same are hereby taxed to the plaintiffs.”
*272I & M urges that the rules applicable to summary judgment which are imported by TR. 12(B) and (C) have no bearing; that, instead, the court’s action amounts to the separation and trial of the jurisdictional issue as permitted by TR. 42(B).
I think it unnecessary to engage in the esoterics of whether the hearing constituted a trial. If it did, it was permitted by TR. 42(B) and since appellants made no request for special findings, their argument presents no reversible error. See TR. 52.
If, which is more likely, the court merely conducted an evidentiary hearing for the purpose of establishing the. facts upon which the jurisdictional question of law depended, such a procedure is authorized by TR. 56(C). The court’s statement of its reasons satisfies the requirements of Harris v. Y.W.C.A., supra.
The purpose of the code of civil procedure is to facilitate the fair and inexpensive determination of matters in litigation. The procedure here followed by the trial court clearly did so. Clearly, the court’s approach was authorized by the rules and the considerations necessary for appellate review were satisfied. There was no error.
I therefore concur.
. “Whether made in a pleading or by motion, the defenses specifically enumerated (1) to (8) in subdivision (B) of this rule, and the motion for judgment on the pleadings mentioned in subdivision (C) of this rule shall, upon application of any party or by order of court [upon its own motion] be determined before trial unless substantial justice requires the court to defer hearing until trial.” (Subdivision (B)(1) asserts lack of jurisdiction over the subject matter.)