Concurring Opinion
Sullivan, P. J.While I concur in the result reached by my brothers in the primary opinion, I respectfully divorce myself from the reasoning they have adopted to reach that result. Because that opinion has refrained from dealing adequately, or in my view, properly, with two aspects of this case, which to me are vital, I feel compelled to file a separate opinion.
LOCAL COURT RULE DID NOT PREVENT FILING OF PLEADING AND MOTIONS WHEN RECEIVED BY CLERK
Initially, I am at a loss to ascertain the merit of the Hancock County Circuit Court’s local custom and practice which requires the clerk of that court to forward pleadings to a special judge without first entering them of record in the cause.
I do not speculate concerning the origin of the particular local rule in question, nor do I presume to question the willingness of special judges from other counties to inconvenience themselves and lose time from their own court business in *71order to journey to a different county solely for the purpose of having papers filed.
Suffice it to say, however, that it seems preposterous to require a special judge to travel to the courthouse in another county in order to accomplish a ministerial act properly within the domain of the clerk of the court, particularly when the papers to be filed were originally in the possession of the clerk and therefore available for filing expeditiously and without delay. The rule in question achieves nothing but delay and in my view tends to bring ridicule and scorn upon the administrative practices of the Indiana judicial system.
In keeping with this view and with Morthland v. Lincoln National Life Insurance Co. (1942) 220 Ind. 692 at 702, 42 N. E. 2d 41, it is my belief that the local court rule was invalid and could not serve to effectively delay filing of the answer and motions in this case beyond the time of their receipt, i.e., March 10,1969.
Filing of the answer of defendants, as well as their Motion for Change of Venue from the County on the same day, whether sequentially before or after entry of judgment, does not, however, avail defendants upon appeal.
FAILURE TO ALLEGE MERITORIOUS DEFENSE FATAL
While it may be noted that sustaining appellee’s demurrer to the petition to set aside the default judgent necessitated a narrow application of the statute involved, we are nevertheless restricted by that which the law required at the time in question. This case, having been tried prior to January 1, 1970, was governed by the old precepts of civil procedure. Under Ind. Ann. Stat. §2-1068 (Burns 1967), the statute controlling this case, a party seeking relief from a default judgment was required to state in his application not only a valid excuse for the default, but, as well, a meritorious defense to the original cause of action. Cantwell v. Cantwell (1957) 237 Ind. 168, 143 N. E. 2d 275; Strickland v. O’Rear *72(1961) 134 Ind. App. 247, 176 N. E. 2d 902. Compare Globe Mining Co. v. Oak Ridge Coal Co. (1931) 204 Ind. 11, 177 N. E. 868, wherein the court held an allegation of meritorious defense unnecessary in a proceeding to set aside a judgment entered after trial in which defendant had submitted evidence in proof of his defense.1
In the Cantwell case, supra, our Supreme Court quoted with approval from 1 Black on Judgments (2d ed), Sec. 376, in part as follows:
“ ‘It is generally held that where a judgment at law is void for want of jurisdiction. . . . equity will relieve against the judgment, if it be shown that there is a meritorious defense to the action.’ ” (Emphasis supplied)
Generally there is no requirement for one subjected to a “void” judgment to do anything more than call the trial court’s attention to the mistake with a request that the same be corrected pursuant to Trial Rule 59. See State, ex rel. Eggers v. Branaman (1932) 204 Ind. 238, 183 N. E. 653. It appears, however, that as a matter of policy, the Supreme Court of this state in Cantwell, supra, in requiring a party subject to a judgment void ab initio to allege in his motion to set aside the same that a meritorious defense exists to the original cause, has adopted a precedent which compels that party to assert matters unrelated to the erroneous judgment itself. The policy here is founded on the tenet that a new trial would be marked by unbecoming futility if no defense existed to a plaintiff’s claim in the first instance. Although the rule serves to decrease the caseload and trial time of the court, it achieves this questionable efficiency by the perpetuation of an openly acknowledged error. To decide otherwise, however, would be to ignore binding precedent of our highest state court. It appears, therefore, that the showing of a *73meritorious defense is necessary to avoid the effects of a void judgment as well as of one which is merely voidable.
In the instant case, it is clear that appellants failed to set out a meritorious defense in their application to set aside the default. The application merely reiterated the virtual fiasco which took place March 4, 1969, and March 11, 1969. Clearly then, and though we might have determined otherwise, Judge Barger acted within his province by refusing to set aside the default. It is for this reason alone that I concur.
. The timely filing- of defendants’ answer in the case before us is not “making of a defense” sufficient to obviate the necessity of an allegation of a meritorious defense in the Petition to Set Aside as treated in the Globe Mining Co. case.