Dissenting Opinion
Sullivan, J.,I respectfully dissent.
Cordill was here entitled to the notice protections of TR. 72(D) and of TR. 5 (A) for he was not “in default for failure to appear”. The appropriation order clearly states that Cordill “appeared” at the appropriation hearing and as the majority opinion has duly noted, that record entry imports absolute verity upon appeal. Having appeared, Cordill could not be held to be in default for failure to appear.
Even were it otherwise, I could not agree with my colleagues. Thus, even if Cordill was not present at the appropriation hearing or if I were to construe his recorded presence at the hearing to be something other than an appearance within the contemplation of TR. 72(D),1 (see Eaton v. Union County Nat’l Bank (1895), 141 Ind. 159, 40 N.E. 693; but see Kirkpatrick Construction Co. v. Central Electric Co. (1903), 159 Ind. 639, 65 N.E. 913) I would be unable to concur.
Certainly Cordill was, by failing to object to the appropriation, thereafter precluded from contesting that determination. But the issue for resolution thereafter, i.e., assess*694ment of benefits and damages are not concluded by an order of appropriation. That issue is entirely separate and distinct from the issue or issues determined at the interlocutory stage. Morrison v. Indianapolis & Western Ry. Co. (1906), 166 Ind. 511, 524, 76 N.E. 961, 965. Eminent domain proceedings, unlike normal civil litigation in which defaults are entered, are peculiarly bifurcated.
The General Assembly has taken recent notice of this fact by making absolute provision for notice to the landowner of the filing of the appraisers’ report without regard to whether a formal appearance has been filed on or prior to the date set for hearing of the right of the condemnor to appropriate the real estate. Thus the statute, Ind. Ann. Stat. §32-11-1-8 (Burns Code Ed. 1975 Supp.), now guarantees a landowner an opportunity to be heard with respect to the damages due him for the land appropriated even though he has chosen not to contest the right of the condemnor to appropriate the land. We should do no less for those operating under the prior statute.
It is inappropriate to speak of the owner’s failure to appear and contest the appropriation as a “default”. But see Gwinner v. Gary Connecting Ry. Co. (1914), 182 Ind. 553, 103 N.E. 794. In the Gwinner case, the court upheld a judgment by default and an order appointing appraisers but relied upon Morrison v. Indianapolis & Western Ry. Co., supra. The Court in Morrison v. Indianapolis & Western Ry. Co., supra, stated:
“In the proceedings at bar, had appellants failed to appear and interpose any objections to the proceedings, then, under such circumstances, the court could, under section four, have treated the complaint as admitted, as in the case of a default, and if satisfied of the regularity of the proceedings and the right of appellee to exercise the power of eminent domain for the use sought might then have proceeded to enter an interlocutory order appointing appraisers.” (Emphasis supplied)
It is important to note that the Morrison court did not say that a landowner who fails to appear and object is in default. *695The court said merely that such person, for purposes of entry of a binding appropriation order, would be considered as if he were in default. The failure to appear therefore should have its “defaulting” effect only with respect to that first separate and distinct stage of the bifurcated procedure.
That Cordill was not in default here, is, to me, demonstrated by reference to our Rules of Civil Procedure.
TR. 55 which governs defaults and the taking of judgments against those in default specifies:
“ (A) When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise comply with these rules and that fact is made to appear by affidavit or otherwise, the party may be defaulted.”
I am unaware of any Rule of Indiana Trial Procedure with which Cordill has failed to comply. Neither can it be said that Cordill was in default for failure to plead, for he was not required to do so. The controlling section of the Eminent Domain statute is Ind. Ann. Stat. § 32-11-1-5. It makes the filing of objections to the appropriation permissive in that it states:
“And defendant may object to such proceedings. . . .” (Emphasis supplied).
Eminent Domain actions are thus unlike civil actions which require a responsive pleading. See TR. 4(C) (5) ; TR. 4.13(B) (6); TR. 6(C); TR. 7(A); TR. 8(A), (B), (C) and (D). The eminent domain proceeding is more in the nature of the special statutory action considered in City of Gary v. Baker (1975), 166 Ind. App. 26, 333 N.E.2d 808, although in the latter case, the statute specifically stated that no responsive pleading was required of the City. In any event, I read the permissivle language of § 32-11-1-5 to not require the filing of objections to eminent domain proceedings. When a responsive pleading is not required, the failure to appear does not place a party in default. City of Gary v. Baker, supra.
Cordill was entitled under TR. 72(D) to notice of the appropriation order. Only through such notice could he have *696been made aware of the date fixed upon which the appraisers were required to file their report and thus take initial steps to protect himself against the ten day period within which to file exceptions.
Furthermore, I believe that Cordill was entitled to be served with a copy of the appraisers’ report itself, as contemplated by the spirit if not the literal words of TR. 5 (A) .2
Had either such “notice” provision been followed, Cordill would have been afforded his rightful opportunity to be heard upon the issue of damages. In this case, he was not accorded a reasonable opportunity to be heard.
I would reverse and remand with instructions to grant Cordill leave to file exceptions to the appraisers’ report and for further proceedings and trial upon the issues framed by such exceptions.
Note. — Reported at 345 N.E.2d 274.
. In this regard, it is my belief that contrary to the local court Rule 2, as quoted by the majority opinion, and contrary to the statement of the majority, an attorney is not bound to see that his appearance is entered. It is enough that the appearance be filed. Counsel should not assume incompetence on the part of the Clerk whose duty it is to see that the appearance is entered of record. Nor should he be required to anticipate clerical oversight. I perceive the majority’s construction of the local court rule and of its consequences to place an unconscionable burden upon attorneys.
. “Trial Rule 5 — SERVICE AND FILING OF PLEADING AND OTHER PAPERS
(A) Service: When required. Unless otherwise provided by these rules or an order of the court, each party shall be served with
(1) every order required by its terms to be served;
(2) every pleading subsequent to the original complaint;
(3) every written motion except one which may be heard ex parte;
(4) every brief submitted to the trial court except trial briefs;
(5) every paper relating to discovery required to be served upon a party; and
(6) every written notice, appearance, demand, offer of judgment, designation of record on appeal, or similar paper. No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.” (Emphasis supplied).