*265Dissenting Opinion
Jackson, J.— The, majority opinion as now written is, in my opinion, erroneous, and I dissent thereto.
This is an original action for a writ of mandate directing the respondent court to grant a change of venue from the county in the case of Mary Jane Bigler, et al. v. The Farmers Loan and Trust Company, Exr. etc., being cause No. 17458 on the dockets of respondent court. We issued an alternative writ on April 26, 1962.
From the petition before us it appears that the will contest action was filed on November 16, 1961, summons was served on the defendants on November 25th and November 27, 1961, to appear on December 11, 1961. On November 28, 1961, a general appearance was entered for the defendants by counsel. No further pleadings were filed nor were further entries made in the cause until April 11, 1962, when relator filed affidavit for change of venue from the county. The change of venue was denied and relator’s petition for writ of mandate in this court followed. Relator contends respondent court should have granted a change of venue under Rule I-12B.1
Respondent filed return to the writ contending that will contests are not governed by the rules pertaining to civil procedure generally, and that the issues were closed by operation of law without the necessity of defendants filing any pleadings.
*266One of the determinates in this action is whether or not an action to contest a will is a “civil action” within the meaning of Acts 1881 (Spec. Sess.), ch. 38, §1, p. 240; 1911, ch. 157, §1, p. 415, being §2-101, Burns’ 1946 Replacement, which reads as follows:
“There shall be no distinction in pleading and practice between actions at law and suits in equity; and there shall be but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a ‘civil action.’ All courts which are vested with jurisdiction both in law and equity may, to the full extent of their respective jurisdictions, administer legal and equitable remedies, in favor of either party, in one and the same suit, so that the legal and equitable rights of the parties may be enforced and protected in one [1] action.”
The courts in Indiana have defined a “civil action” by quoting with approval a decision of the Supreme Court of Montana, which says:
“What is a civil action? It is an action wherein an issue is presented for trial, formed by the averments of the complaint, and the denials of the answer, or the replication to new matter, and the trial takes place by the introduction of legal evidence to support the allegations of the pleadings and a judgment in such an action is conclusive upon the rights of the parties, and could be plead in bar.” Evans v. Evans (1886), 105 Ind. 204, 210, 5 N. E. 24, quoting from Deer Lodge Co. v. Kohrs (1874), 2 Mont. 66; Indiana State Board etc. v. Davis (1918), 69 Ind. App. 109, 120, 121 N. E. 142; Kney v. Gahimer, Gdn. (1935), 99 Ind. App. 510, 516, 193 N. E. 394; State ex rel. Bradshaw v. Probate Ct. (1947), 225 Ind. 268, 73 N. E. 2d 769.
It has long been held that a proceeding to revoke and set aside the probate of a will is a civil action. Lowes’ Rev., Works’ Ind. Pract., Vol. 1, §1.1, 1.2, 1.3; *267Goodbud v. The Estate of Hornung (1891), 127 Ind. 181, 185, 26 N. E. 770; Evans v. Evans (1886), 105 Ind. 204, 5 N. E. 24; Fort v. White (1913), 54 Ind. App. 210, 220, 101 N. E. 27; McConahey’s Estate v. Foster (1899), 21 Ind. App. 416, 419, 52 N. E. 619.
Thus, there can be no doubt that a will contest is a civil action within the meaning of Acts 1911, ch. 157, §1, p. 415, being §2-101, Burns’ 1946 Replacement.
The fact that a procedure is statutory is relatively unimportant. If such statutory proceeding provides its own procedure it must be followed. Where it is only partly provided, the civil code of procedure steps-in and provides the rest. The fact that the provision for contest of a will does not say that it shall be governed by the civil code is not important, as all cases and authorities say it will.
“Not infrequently the opinions make the remark or comment or in effect rule, that on the question whether or not Code procedure is applicable, it does not matter whether the proceeding be regarded as a civil action or as a special proceeding.” Lowes’ Rev., Works’ Ind. Pract., Vol. 1, §1.4, p. 13; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 271, 98 N. E. 177; Robertson v. State ex rel. Smith (1887), 109 Ind. 79, 87, 10 N. E. 582; In re Griffin (1904), 33 Ind. App. 153, 154, 69 N. E. 192.
“Where no mode of procedure is especially provided in probate matters it has been said that the rules of procedure in civil cases may be followed. Thus, the decedents’ act does not provide a complete Code of procedure, and hence the rules of pleading and practice provided for civil actions are applied. ...” Lowes’ Rev., Works’ Ind. Pract., Vol. 1, §1.4, p. 14; Goodbud v. The Estate of Hornung (1891), 127 Ind. 181, 185, 26 N. E. 770; Scherer v. Ingerman, Administrator (1887), 110 Ind. 428, 441, 11 N. E. 8, 12 N. E. 304; McConahey’s Estate v. Foster (1899), 21 Ind. App. 416, 419, 420, 52 N. E. 619.
*268“In actions to contest the validity of wills or resist their probate, the rules governing the trial of civil actions under the code are applicable, and pleadings, demurrers, motions, answers, pleas in abatement, statute of limitations, estoppel, etc., are sanctioned in such actions by the reported cases.” Henry’s Probate Law and Pract. [6th Ed.], Vol. 1, p. 247, and cases cited therein.
Issues must be formed in all civil cases. This means complaint and answer. The case is not at issue until an answer or demurrer is filed.
The question of the time for filing a change of venue in a will contest is after the answer has been filed.
The temporary writ heretofore issued should be made permanent.
I further dissent to the granting of the petition for rehearing in this cause for the reason that at the time the former majority opinion (see 186 N. E. 2d 881 for opinion and concurring opinion) was written, the same had been written, voted on and approved prior to 9:30 a. m., January 7, 1963, the time it was handed down to the clerk’s office. The delivery of the opinion to the clerk’s office at that time had no more effect than if it had been delivered there at 4:00 or 4:30 p. m. on Friday, January 4, 1963. If so called late or delayed handing down of a case is the criteria by which the validity of the opinion is to be determined, then several recent decisions of the Appellate Court are suspect. Decker v. Rev. Board of Ind. Employ. Sec. Div. (1963), 124 Ind. App. 164, 186 N. E. 2d 890; Elberson v. Tokheim Corp. (1963), 135 Ind. App. 688, 186 N. E. 2d 894.
Note. — Reported in 198 N. E. 2d 3.
. “In any action except criminal no change of judge or change of venue from the county shall be granted except within the time herein provided. Any such application for change of judge or change of venue shall be filed not later than ten (10) days after the issues are first closed on the merits, or if the issues are closed without answer by operation of law, . . . not later than ten (10) days after the party has knowledge the cause is ready to be set for trial.”