On Motion To Dismiss.
Myers, J.This was a proceeding filed in the LaPorte Circuit Court by appellee to obtain his release from custody by means of a writ of habeas corpus. After a hearing, the LaPorte Circuit Court ordered that appellee be released from custody on December 16, 1963.
Appellant filed a motion for new trial which was overruled by the court, whereupon appellant proceeded to perfect an appeal by filing the transcript and assignment of errors on September 25,1964.
In response to appellant’s appeal, appellee has filed a motion to dismiss the appeal or affirm the judgment below. In his motion appellee contends that a decision following a hearing on a writ of habeas corpus is not a final judgment, but that it is in the nature of an interlocutory order. He further contends that an appeal from a decision on a writ of habeas corpus must be undertaken as provided for interlocutory orders *638and that filing a motion for new trial is unnecessary. Accordingly, in view of the above, appellee claims that appellant’s appeal was filed too late since the transcript and assignment of errors were filed more than thirty days after the decision on the writ of habeas corpus.
The issues raised by appellee were decided by this court on April 19, 1965. Houtchens v. Lane, as Warden of Indiana State Prison, and Ward v. Lane, as Warden of Indiana State Prison, combined Causes Nos. 30,717 and 30,718, 246 Ind. 540, 206 N. E. 2d 131, (Time for filing petition for rehearing has not expired.) See also Turner v. O'Neal, Sheriff, etc., et al. (1957), 237 Ind. 258, 145 N. E. 2d 1. In these decisions we held that the order in a habeas corpus proceeding, discharging or refusing to discharge a person from custody, is a final order or judgment and that it is not interlocutory in character. In the opinions referred to above, we also held that if there has been a trial in a habeas corpus proceeding, a motion for new trial is the proper means of presenting alleged error occurring during the trial or prior thereto.
Therefore, in the matter at hand, the appellant has followed the correct procedure and his appeal is in proper time. Appellee’s motion to dismiss or affirm must be and is overruled.
Motion overruled.
Arterburn, C. J., and Achor and Landis, JJ., concur.
Jackson, J., dissents with opinion.