dissenting.
I dissent. The Majority Opinion mirrors the archaic code pleading mode which received its last rites over sixteen years ago. To resurrect this code mode from the grave would cause procedural confusion throughout the practicing bar and generate per*171plexities that would spread over the litigation landscape like the plague. Procedural uncertainty can be avoided today by following the Indiana Supreme Court Rules of Procedure. Where a conflict exist between a statute and the Supreme Court Rules, a party entering the Indiana Court system should feel secure in following the procedural rules approved by the Indiana Supreme Court. State v. Bridenhager (1972), 257 Ind. 699, 279 N.E.2d 794.
Kupfer v. Board of Zoning Appeals of Indianapolis (1959), 130 Ind.App. 55, 162 N.E.2d 110 was handed down by this Court eleven years before the present Indiana Rules of Procedure were adopted in 1970. The decision in Kupfer turns on a very narrow and strict statutory procedural distinction which has little or nothing to ree-ommend it today. Kupfer has many faults in its rationale which underscores why it has been impliedly overruled by the adoption of the Indiana Rules of Procedure in 1970. First, Kupfer held that it did not have jurisdiction. A special appearance had been entered by the Board of Zoning Appeals so that it could file its motion to dismiss. Special appearances were used prior to 1970 to contest matters such as jurisdiction and to delay any action on the merits. Under the present Indiana Rules of Procedure, special appearances have been eliminated. Trial Rule 4(A) provides:
"Jurisdiction Over Parties or Persons-In General. The court acquires jurisdiction over a party or person who under these rules commences or joins in the action, is served with summons or enters an appearance, or who is subjected to the power of the court under other law."
Because special appearances are no longer a part of Indiana procedure, the trial court had jurisdiction of the parties and as will be shown later, jurisdiction of the case as well.
Secondly, only by an over indulgence in sophistry and self-deception can a petition for certorari from a board of zoning appeals be considered a new or original action. An original action has never been adjudicated. There is nothing to review in an original action, yet Kupfer predicates it holding on the originality of the petition for certiorari. IC 86-7-40-1003 provides that "Each decision of the board of zoning appeals is subject to review by certiorari." A review is a continuation of a previous proceeding. The 1968 Edition of Black's Low Dictionary defines "review" as follows:
"To re-examine judicially. A reconsideration; second view or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate court;"
If an action is indeed original, it is difficult to comprehend how there could be anything to reconsider or consider for the purposes of correction. It is quite clear from reading the statutes that an original action is not intended when a petition for certiora-ri is filed in the trial court. IC 36-7-4-1009 provides that review "not be by trial de novo." which clearly negates any pretense of an original action. Too, the same Statute provides for the taking of supplemental evidence which is a further negation of the original action contention in Kupfer. The supplemental evidence provision of the statute reflects a clear intent by the legislature that the certiorari action be a continuation of the zoning hearing. IC 836-7-4-1009 provides:
"Determination by court-Supplemental evidence.-The court may determine the sufficiency of the statements of the illegality contained in the petition, without further pleadings, and may make its determination and render its judgment with reference to the legality of the decision of the board of zoning appeals, on the facts set out in the return to the writ of certiorari. If the court determines that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return to the writ of certiorari, but the review may not be by trial de novo. In passing on the legality of the decision of the board, the court may reverse, affirm, or modify the decision of the board brought up for review."
*172In an action which is being continued from a board of zoning appeals to a trial court for the purpose of review as set forth in the statutes cited above, notice to adverse parties of record must be given in accordance with the Indiana Rules of Trial Procedure, TR 5(B) which states:
"(B) Service: How Made. Whenever a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party himself is ordered by the court. Service upon the attorney or party shall be made by delivering or mailing a copy of the papers to him at his last known address."
Stephen D. Mears was the attorney of record for Dellen Realty, Inc. at The Metropolitan Board of Zoning Appeals hearing. Service on Mears as provided by TR 5(B) was service on Dellen Realty, Inc. Under the Supreme Court Rules of Trial Procedure, the trial court had jurisdiction of the parties and under IC 86-7-4-1008, the trial court clearly had jurisdiction of the case.
I would overrule Kupfer v. Board of Zoning Appeals of Indianapolis and reverse the judgment of the trial court.