DISSENTING OPINION
Lybrook, J.I respectfully dissent from the opinion of my learned colleagues as to when, for purposes of Indiana Rules of Procedure, Trial Rule '76(2), the issues are first closed on the merits in cases involving multiple defendants in separate capacities. While I have no quarrel with the holdings of State ex rel. Yockey v. Superior Court of Marion County *334(1974), 261 Ind. 504, 307 N.E.2d 70, and State ex rel. Katz v. Superior Court of Marion County (1974), 261 Ind. 623, 308 N.E.2d 694, I find those cases clearly distinguishable from the case at bar. Both of those cases involved an interpretation of TR. 76 where there was but one defendant and one answer. The rule announced in such situations is that the issues are deemed first closed on the merits upon the filing of defendant’s first answer. This interpretation was adopted to resolve the competing policy considerations of TR. 76 that (1) the rule is intended to guarantee a fair and impartial trial by making the automatic change of venue available and (2) the rule was designed to avoid protracted litigation by imposing a time limit after which the automatic right to change of venue ceases to exist. The balance between these competing considerations in cases with one defendant is best achieved by the rule of Yockey and Katz.
. However, in cases involving multiple defendants in separate capacities, the rule adopted by the majority herein has necessarily sacrificed the first of the competing considerations in favor of the second. The problem with the majority approach may best be shown by way of illustration. Assume that P files suit naming DI and D2 as defendants. Further assume that service is made on DI and D2 on the same day. Under TR. 6(C), each defendant has 20 days to respond. Assume that D1 contacts his attorney immediately and an answer is filed the next day. Assume that D2 upon attempting to contact his attorney learns that he will be out of town for two weeks. When D2’s attorney returns, the matter is discussed and it is decided, for various reasons, that a change of venue is necessary. Applying the rule of the majority to this fact situation precludes D2 from obtaining an automatic change of venue despite the fact that D2 still has time under TR. 6(C) to answer. I .do not believe that such a harsh result is intended under Yockey, Katz and TR. 76(2).
*335In my opinion, in cases, involving multiple defendants in separate capacities reconciliation of the competing considerations of TR. 76 is best achieved by a rule which provides that the issues are deemed first closed on the merits at the time the answer of the last defendant to answer is first filed.1 Under this approach, neither of the competing policy considerations is ignored. Each party is guaranteed his right to automatic change of venue, a right which is substantive and emanates in part from the Indiana Constitution. See dissent of Justice DeBruler in Yockey, supra. Moreover, protracted litigation is avoided in that all pleadings and motions other than the complaint and answer such as amended answers, counterclaims, cross-claims, replies to counterclaims, and answers to cross-claims, all of which aid in framing the issues on their merits are not to be considered for purposes of TR. 76(2). Assuming arguendo that no extensions or enlargements of time to answer are requested or granted, under the interpretation of TR. 76 which I advocate, the maximum possible time to request and receive an automatic change of venue would be the same in cases involving multiple defendants in separate capacities as in cases with a single defendant under the rule of Yockey and Katz. I therefore am unable to justify the majority rule which sacrifices, rather than balances, one of the competing policy considerations of TR. 76 in favor of the other.
Applying the above discussion to the case at bar I conclude that plaintiff’s motion for change of venue was timely and that the trial court therefore was duty bound to grant the motion. The trial court had no jurisdiction to act further in this matter other than to grant plaintiff’s motion. See, Anderson v. Sell (1971), 150 Ind. App. 262, 276 N.E.2d 194 and cases therein cited.
*336' I therefore, would vacate the judgment below and remand the cause with instructions to grant plaintiff’s motion for change of venue.
NOTE. — Reported at 336 N.E.2d 392.
. For further discussion, see NOTE, Change of Judge in Indiana: A Continuing Dilemma, 2 Ind. L. Forum 164 (1968-69)and 4 Harvey, Indiana Practice 554 (1971).