Dissenting Opinion
Staton, P.J.— I dissent. Indiana Rules of Procedure, Trial Rule 60(B) permits a motion to be filed within a year after judgment.1 The Rule provides in part:
“(B) Mistake — Excusable neglect — Newly discovered evidence — Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from a final judgment, order, default or proceeding for the following reasons:
(1) mistake, surprise, or excusable neglect;
(2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct errors under Rule 59;
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) judgment by default was entered against such party who was served only by publication and who was without actual knowledge of the action and judgment, order or proceedings; ...”
The expressed purposes of the Rule should not be frustrated or forfeited by an appeal from the trial court’s first appealable judgment2 which has a singularly different purpose — correction of an alleged error committed during trial which has been brought to the trial court’s attention. A new procedural Rule *164is needed for a functional TR. 60(B) where an appeal has been taken from the trial court’s judgment.3
Several solutions have been adopted by the federal courts. First, the Rule 60(b) movant presents his grounds for relief to the court of appeals, and it decides whether the cause should be remanded for a hearing on the motion. Weiss v. Hunna (2d Cir. 1963), 312 F.2d 711, cert. denied, 83 S.Ct. 1920, 374 U.S. 853, 10 L.Ed.2d 1073; Zig Zag Spring Co. v. Comfort Spring Corp. (3d Cir. 1953), 200 F.2d 901. Second, the Court of Appeals grants permission to the trial court to hear the Rule 60(b) motion. Diapulse Corp. of America v. Curtis Pub. Co. (2d Cir. 1967), 374 F.2d 442. Third, if the Rule 60(b) motion is filed with the trial court and it indicates that the motion will be granted, then the movant may make an application to the Court of Appeals for remand of the cause to the trial court. Iannarelli v. Morton (3d Cir. 1972), 463 F.2d 179; Canadian Ingersoll-Rand Co. v. Peterson Prods. of San Mateo, Inc. (9th Cir. 1965), 350 F.2d 18; Aune v. Reynders (10th Cir. 1965), 344 F.2d 835; Ryan v. U.S. Lines Co. (2d Cir. 1962), 303 F.2d 430; Binks Mfg. Co. v. Ransburg Electro-Coating Corp. (7th Cir. 1960), 281 F.2d 252, cert. dismissed, 366 U.S. 211, 81 S.Ct. 1091, 6 L.Ed.2d 239. Fourth, a Rule 60 (b) movant is permitted to appeal from the denial of his motion. The appeal from the original judgment and the denial of the Rule 60(b) motion are considered at the same time and as a single appeal by the court of. appeals. Ferrell v. Trailmobile, Inc. (5th Cir. 1955), 223 F.2d 697; Aune v. Reynders, supra; Binks Mfg. Co. v. Ransburg Electro-Coating Corp., supra.
In Ferrell v. Trailmobile, Inc., supra, 223 F.2d at 699, the court suggested the following rationale:
*165. A party who considered himself entitled to relief both under Rule 60(b) and also by appeal, might, on occasion, lie required to elect between the two remedies, if appeal deprived the district court of jurisdiction to consider the motion under Rule 60(b). The construction suggested by the Seventh Circuit makes both remedies available, and we think that is the right course. We think, therefore, that this Court has jurisdiction to consider not only the appeal from the original final judgment, but the appeals from the judgment denying relief under Rule 60(b) . . .”
I would deny the motion to dismiss and consolidate both appeals. Final disposition of litigation in which a TR. 60 (B) motion has been filed would be advanced and the certainty of a forced election avoided.
Note. — Reported at 338 N.E.2d 309.
. TR. 60(B) provides in part:
“The motion shall be made within a reasonable time, and for reasons (1), (2), (3) and (4) not more than one [1] year after the judgment, order or proceeding was entered- or taken; . . '
. TR. 56(C). A summary judgment on less than all the issues. Also see TR. 54.
. Bright v. State (1972), 259 Ind. 495, 289 N.E.2d 128, is not applicable to a TR. 60(B) one-year limitation. The purpose-for filing post-conviction relief is different from the TR. 60(B) purpose. Secondly, a TR. 60(B) is generally used in civil rather than criminal cases.