Dissenting Opinion
Garrard, J.I dissent from what I deem to be the majority’s blind application of the doctrine announced in State v. Deprez (1973), 260 Ind. 413, 296 N.E.2d 120, to the proceedings in this case.
Indiana Rules of Procedure, Trial Rule 59 must be read in conjunction with Appellate Rule 4(A) which provides in part:
“A ruling or order by the trial court granting or denying a motion to correct errors shall be deemed a final judgment, and an appeal may be taken therefrom.”
On the other hand, TR. 59 provides a much more broad authority for action by the trial court than simply granting or denying a new trial. TR. 59(E). In paragraph (G) it also requires that the error relied upon be presented by motion, however and whenever the error occurred prior to the time of filing.
When the trial court rules upon a TR. 59 motion it may amend findings already made or add new findings to correct an error or potential inadequacy perceived by the court. It may similarly alter, amend, modify or correct a judgment.
Where this is done, there is in reality a new judgment. Even where the change is in the findings and the previous judgment is re-entered, it is procedurally a new judgment for it is entered upon the findings. The procedural desirability of a new motion in such cases is logical. It eliminates continued *588pursuit of an assignment of error in the original motion which is no longer pertinent. It places before the trial court, and this court for review, assignments and specifications which depend upon or arise out of the amendments or modifications made by the court in its ruling on the first motion.
When, however, the court in response to the first motion simply orders a new trial, those reasons for another motion to correct errors do not exist. There is simply no new judgment. Furthermore, that the court may assign reasons for its reversal does not as a practical matter make a new motion desirable. The viable error, if present, has already been considered by the trial court and needs no further preservation or amplification to enable us to make a proper review. The very expression of the reason by the court demonstrates its consideration of the issue and its conclusion thereon.
Furthermore, as set forth in the majority opinion, during trial the court admitted an exhibit which was clearly a discretionary matter since the exhibit did not purport to be a full and true representation of the interchange as it existed at the time of the collision.1 The judge concluded that he had abused his discretion in admitting the exhibit and that this had denied a fair trial. TR. 59 (A) (1). Although another judge might not have reached the same conclusion, I cannot say the trial judge clearly erred in his determination. He tried the case and is in the best position to decide upon the improper impact of the exhibit. Accordingly, I would affirm the grant of a new trial.
Note.—Reported at 330 N.E.2d 113.
. Review of admitting this evidence should be distinguished from review where the question is restricted to a ruling on legal admissibility. In such instances, the trial court’s inquiry on a motion to correct errors is to determine whether the item was admissible.