Dissenting Opinion.
Jackson, J.— I am unable to agree with the conclusions reached in the majority opinion and dissent thereto.
The matters in issue in this action are succinctly set forth in the relators’ petition in paragraphs No. 1 through 12 inclusive, which in the interest of presenting a clear factual situation in the instant case, are set forth as follows:
“1. That the respondent, Jack Rogers, is the duly elected, qualified and acting Judge of the Johnson Superior Court, and on the 7th day of *545March 1963 he appeared and qualified to serve as Special Judge in a certain suit in the Bartholomew Circuit Court and assumed jurisdiction therein as such Special Judge.
“2. The suit in question involved a petition to modify a previous order of the Bartholomew Circuit Court concerning the possession and custody of a minor child, Carmen Yvonne Hooker. Said custody order previously made by the Bartholomew Circuit Court grew out of a divorce action between the respondents, Carl O. Hooker and Patricia Anne Hooker (Meek), which resulted in a decree of divorce being entered therein on the 6th day of June, 1955.
“3. Said petition for modification was filed by these relators on the 11th day of October, 1962, after they had been permitted and authorized by William M. Lienberger, Judge of the Bartholomew Circuit Court, to intervene in said cause.
“4. After these relators had been allowed to intervene and had filed their petition for modification relating to the custody of the child, said Judge of the Bartholomew Circuit Court issued a temporary restraining order against the said Carl O. Hooker restraining him from abducting or taking physical possession of said minor child. The said petition for modification and temporary restraining order were both set down.for hearing on the 6th day of December, 1962.
“5. The Court ordered notice to be given to the said Carl O. Hooker and Patricia Ann Hooker (Meek) and said notice was given by personal service on each of said parties with additional service on the said Patricia Anne Hooker (Meek) by newspaper publication.
“6. The said Carl O. Hooker thereafter appeared by his counsel and filed a motion to strike Said relators’ petition to intervene, and the said Patricia Anne Hooker (Meek) likewise appeared by- her own counsel and filed a plea in abatement addressed to relators’ said petition to intervene.
“7. Thereafter, the said Carl O. Hooker filed ;his application for change of venue from Judge Lienberger, and the respondent herein, Jack *546Rogers, was selected, appointed and qualified as Special Judge in said cause.
“8. After the respondent, Jack Rogers, had assumed jurisdiction in this matter, the relators filed their demurrer to the plea in abatement filed on behalf of the said Patricia Anne Hooker (Meek), and relators further filed their brief in opposition to the motion to strike of Carl O. Hooker.
“9. On the 18th day of April, 1963 the respondent, Jack Rogers, without any previous hearing, struck relators’ said petition to intervene from the records of this cause, and in addition thereto struck out relators’ said petition for modification and he further dissolved the temporary restraining order previously issued against the said Carl O. Hooker.
“10. That the respondent, Jack Rogers, refuses to assume jurisdiction of this cause and to reinstate relators’ petition to intervene, petition for modification and said temporary restraining order.
“11. That it is the duty of the respondent Jack Rogers, to consider the matters asserted in relators’ petition upon their merits.
“12. That a certified copy of all pleadings, orders and entries pertaining to this cause are set out and attached hereto and marked Exhibits numbered 1 through 17, inclusive.”
Thereafter, this court issued a temporary writ reading in pertinent part as follows:
“Now therefore you, as Special Judge of the Bartholomew Circuit Court, are commanded to assume jurisdiction of said above entitled cause pending in the Bartholomew Circuit Court, as Special Judge therein; to reinstate relators’ Petition to Intervene, Petition for Modification and the temporary Restraining Order issued therein, and to hear the merits of relators’ said Petition for Modification.
“It is further ordered that you, as said Special Judge in said cause on or before the 13th day of *547May, 1963, to show cause, if any you have, why this temporary writ of mandate should not be made permanent, and have you then and there this writ.”
Thereafter, on May 13, 1963, respondents made return to the temporary writ so issued, reading in pertinent part as follows:
“1. The original action, a complaint for divorce between Carl O. Hooker vs. Patricia Anne Hooker, had gone to final judgment on June 6, 1955 wherein the issues between the original parties had been determined and a final decree had been entered. A copy of this decree is a part of the transcript filed in these proceedings by the Relator, and is incorporated herein by reference, and is made a part hereof as Exhibit I. The custody of the children of Carl O. Hooker and Patricia Anne Hooker was determined in that final decree of divorce (Exhibit I hereto).
“2. Relators have not moved to set aside the final decree of judgment so that they might intervene.
“3. By his Petition to Intervene and Petition to Modify, the Relator admits that there is no controversy between the original Plaintiff and Defendant. The Petition to Intervene and the Petition to Modify are already a part of the transcript filed in these proceedings by the Relator and are incorporated herein by reference and are made a part hereof as Exhibit 2 and Exhibit 3, respectively. The Relator’s sole purpose in intervening is to settle a dispute as to whether the Plaintiff in the original action shall have the continued care and custody of the Plaintiff’s minor child as provided for in the decree of divorce (Exhibit I hereto).
“4. Carl O. Hooker, Plaintiff in the original action, filed a timely objection to the improper intervention in the form of a Motion to Strike. The Motion to Strike Relator’s Petition to Intervene, already a part of the transcript filed in these proceedings, by the Relator, is incorporated by reference and is made a part hereof as Exhibit 4. After oral arguments on the motion, the Court *548was sufficiently advised and deemed the intervention improper. The Court then sustained the said motion to strike.
“5. The trial court’s ultimate refusal to permit the Relator to intervene, as indicated by the sustaining of the Petition to Strike (Exhibit 4 hereto), is a final judgment from which an appeal will lie. The Relator’s remedy in this cause is not in the area of extraordinary writs, but in appeal.
“WHEREFORE, the Respondents pray the Supreme Court of Indiana that it reconsider its action in issuing a Temporary Writ of Mandate; that it find and hold that trial court’s action in sustaining the Motion to Strike was proper; that it find and hold that the Relator’s remedy in this cause is appeal; that it find and hold that no Permanent Writ of Mandate should issue; that it dismiss and deny the Petition for Writ of Mandate; that it assess costs herein against the Petitioners and Relator, and for all other relief proper in the premises.”
It appears that the proper questions relative to the issues to be resolved in the case at bar would be determined by:
1. The time for intervention: Whether a proper but not a necessary party is allowed to intervene is within the discretion of the court; but, such an intervention must be before final judgment and the expiration of the term. Once the judgment has been entered, a new trial must be granted before additional parties may be added by petition to intervene. Flanagan Ind. Plead. & Prac., ch. 14, §50, Comment 2.
As the transcript filed in these proceedings by the relators indicates, the original cause has gone to judgment, the term has expired and no new trial has been granted. The relators’ Petition to Intervene was not timely.
2. The remedy for striking Petition to Intervene:
*549“. . . A refusal to permit a- person to intervene, or the striking of an intervening petition, is a final judgment from which an appeal will lie . . .” Flanagan Ind. Plead. & Prac., ch. 14, §50, Comment 3 (c) and cases cited therein.
The relators’ remedy, if the trial court is in error, is appeal and not an extraordinary writ.
I point out that in the cases cited and relied upon in the majority opinion, parties to the original- action -either filed a petition to modify the decree by reason of a change of circumstances or perfected. an appeal from the decision of the court. Strangers to the original proceedings did not in effect collaterally attack the judgment by an action to intervene some seven years after the rendition of the original decree of divorce, which had never been appealed from or modified, and which judgment granted custody of the child to the father. The case of Manners v. State (1937), 210 Ind. 648, 5 N. E. 2d 300, lends no authority to the majority opinion.
It appears that the temporary writ was issued improvidently and the same should be dissolved and the permanent writ denied.
Note. — Reported in 200 N. E. 2d 878.