Dissenting Opinion
DeBruler, J.There is much sound law in the majority opinion with which I heartily agree, however, I do not concur in the application of that law to the circumstances presented here. The issue before us is whether the Noble Circuit Court correctly denied the Trial Rule 60 motion of the City of New Haven. That motion was summarized by the opinion of Judge Garrard for the Third District Court of Appeals as having two legal bases: (1) that the Allen Circuit Court judgment at which the motion was directed was entered without notice or opportunity for the City of New Haven to be heard or present evidence; and (2) that the Allen Circuit Court judgment exceeded the mandate of the Second District Court of Appeals in City of Fort Wayne v. Board of Trustees of the Town of New Haven, etc., (1971) 150 Ind. App. 519, 277 N.E.2d 38. The record does not support the absence under the first theory of such opportunity, but shows instead a bypass of an available opportunity in the Allen Circuit Court and the *427actual presentation of New Haven’s contentions to the Court of Appeals in a separate proceeding, Cause No. 169 A 17. With regard to the second theory, the mandate foreclosed a summary judgment for New Haven because of the absence of standing on the part of Fort Wayne to sue, and required further consistent proceedings. The judgment challenged by this motion thereafter rendered was for Fort Wayne based upon the absence of jurisdiction of the Board and was not, therefore, inconsistent with the mandate. Adhering to the contentions made in the Trial Rule 60 motion, Judge Garrard for the Court of Appeals moves studiously from point to point to the conclusion that the Noble Circuit Court could properly find against New Haven as a matter of law on the allegations of the motion. I agree with that conclusion and would affirm the judgments of the Allen Circuit Court and the Noble Circuit Court.
Note. — Reported at 375 N.E.2d 1112.