¶1Dissenting Opinion
¶2I dissent from the majority opinion for these reasons:
¶3REASON ONE: SUBSTANCE NOT FORM SHOULD BE DETERMINATIVE.
¶4Determining the nature of a motion should depend upon two standards: (1) the actual content of the motion and (2) where an argument or hearing is held, the manner in which the trial court treats the motion when applying the law. The second standard is vitally important since a hearing on the motion supplements its contents and may be the entire basis for an understanding between the litigants and the trial court. The motion filed by Mohney was labelled a “motion to reconsider.” Labelling a motion is a hazardous accommodation. There is no modus operandi for instituting relief under Rule TR. 60(B) of the Indiana Rules of Procedure. *254Justice Hunter, writing for the majority of our Supreme Court in Soft Water Utilities, Inc. v. LeFevre (1973), 261 Ind. 260, 301 N.E.2d 745, 750, wrote:
“Appellee correctly contends that nunc pro tunc is not the correct form of entry to be made in a case such as this. We agree that the form of the trial court’s relief was improper. However, the substance of its action was equitably just, and we are concerned here with whether the trial court was substantially correct in its ruling and not whether the chosen form of relief satisfies the label attached to it. We are holding that on the facts of this case, the trial court was justified in changing the date upon which the motion to correct errors was overruled. We interpret the literal effect of the trial court’s order to be a vacation of the judgment previously entered with a re-entry of judgment upon a subsequent date. This was all done pursuant to Trial Rule 60 (B). Since TR. 60 provides no modus operandi for instituting such relief, we find that the procedural methods employed by the trial court in the case at bar were a correct application of TR. 60(B), notwithstanding the title or form.”
¶5Mohney had a hearing on his “motion to reconsider” on August 14, 1972. My examination of the record clearly indicates to me that the trial court intended to treat Mohney’s motion as a Rule TR. 60(B) (8) motion since the trial court was aware of an impending appeal of the judgment and that time should be tolled. At pages 350, 351 and 352 of the Transcript, the following appears:
“MR. DEITCH: Does the State have objection to the Court taking this under advisement — the Motion to Correct Errors — pending the Stroud vs. Indiana Case in the U.S. Supreme Court?
“THE COURT: Well, I’ve thought about that some since we talked about it, and I’ve decided that the United States Supreme Court has too many alternatives, routes, to pursue and we very well could get ourselves into a situation where it’s next Spring before we know what they’re going to do in Stroud vs. Indiana, and then maybe I’m indulging too much in what we call in the Marine Corps the CYA Syndrome, and I ought to just go ahead and rule in a timely fashion—
*255“MR. DEITCH: In other—
“THE COURT: — and if it results in them dragging you, screaming, down to Indianapolis, it will result . in that, I guess.
“MR. DEITCH: Just trying to be economical for both sides of this lawsuit — the State, the taxpayers and everyone else.
“THE COURT: I understand that, but Mr. Duemling and I would both, I’m sure, hasten to point out that you’re the only one in this law suit who’s got a meter running. He and I get paid the same thing every day.
“MR. LATKER: What did the Court do with the motion— “THE COURT: And speeding it on its way to Indianapolis is one way to, you know, move the process of my Court along.
“MR. DEITCH: That’s right, Your Honor, and there will be another docket issued to this case if the Court overru— denies the motion, and we will have a case docketed in the Court of Appeals of Indiana and the judicial process is no way expedited by that.
“THE COURT: Well, it’s either that, or try it again here, and you don’t particularly want to have to undergo—
“MR. DEITCH: No, Your Honor, I — can’t the Court dismiss the case ?
“THE COURT: I suppose I could. I don’t really want to—
“MR. DEITCH: That would be most expeditious.
“MR. LATKER: I was concerned with the time element on the appeal, to know whether the Court has—
“THE COURT: Whatever I do, you’ll be instantly informed of, Mr. Latker. Well, maybe not instantly, but by mail the next day.
“MR. LATKER: Well the — for instance, the Motion to Reconsider. If that were allowed we could take — take away the, ah, the—
“THE COURT: The tolling of the time. Yes, I’ll do that, soon.
“MR. DEITCH: So, as I understand it, the Court is taking —is reconsidering the Motion to Correct Errors, and is taking—
“THE COURT: Granted that and set aside my ruling on Motion to Errors, (sic) and I’ve listened—
*256“MR. DEITCH: —and taken under advisement—
“THE COURT: —impatiently to your argument.
“MR. DEITCH: —and taken under advisement the Motion to Correct Errors argued today.”
¶6After examining the entire record, which is applicable to Mohney’s motion, it is clear that the trial court treated Mohney’s “motion to reconsider” as a TR. 60(B) motion and then took the previously filed “motion to correct errors” under advisement. This understanding between the trial court and the litigants is reinforced by the Court’s own action on January 15, 1973 when it denied Mohney’s “motion to correct errors” a second time and on January 31, 1973 when the trial court vacated its previous action on January 15, 1973. Thereafter, on April 23, 1973, the trial court again heard oral arguments and denied Mohney’s “motion to correct errors” for the third time. These actions by the trial court cannot be viewed as useless and meaningless acts. Apple v. Apple (1973), 157 Ind. App. 68, 299 N.E.2d 239; Edwards v. Countess of Warwick (1723), 2 Will. Rep. 172, 22 Eng. Rep. 36.
¶7Unlike Soft Water Utilities, Inc. v. LeFevre, supra, the trial court did not deny Mohney’s motion to praecipe the record for an appeal after its April 23, 1973 ruling. This inaction on the part of the trial court strongly infers that the praecipe was correctly filed within the context of what had preceded and was consistent with all of the previous action taken by the trial court.
¶8All of the action taken by the trial court upon Mohney’s “motion to reconsider” was addressed to the trial court’s equitable discretion. It is quite clear from the hearing held on August 14, 1972 that the trial court chose to treat the motion as a TR. 60 (B) (8) motion. Mohney was led to believe by the trial court that the time was tolled for the appeal so that an adverse ruling by the court could be appealed. The trial court vacated its judgment and made a re-entry upon a *257subsequent date. This was within the equitable discretion of the trial court under Rule TR. 60(B). Unless there is a clear showing of an abuse of discretion by the trial court in taking these actions upon Mohney’s “motion to reconsider,” the State’s “motion to dismiss” the appeal must be denied. Soft Water Utilities, Inc. v. LeFevre, supra.
¶9REASON TWO: TO DISREGARD THE BASIC JUSTICE THAT THE TRIAL COURT FELT NECESSARY IS TO MAKE THE TRIAL COURT AN UNWITTING PARTY TO THE FORFEITURE OF AN APPEAL.
¶10This I refuse to do because it requires the acceptance of two basic premises: (1) that all the actions taken by the trial court from June 5, 1972 through April 23, 1973 were futile, meaningless acts; (2) the trial court with its vast powers over the litigation before it can commit acts which would tend to mislead a litigant and thereby cause the forfeiture of the litigant’s appeal. Article 7, Section 6, Constitution of Indiana. This does not serve the administration of justice.
¶11The actions of any court must be for a singular purpose: to serve the administration of justice. The administration of justice can easily become subservient to rigid, technical rules of procedure. Our minds have been trained to function in this manner, and to a large degree, this is equally important for the orderly, expeditious administration of justice. A delicate balance exists. A court should invoke its inherent powers in the instant case where a clear imbalance is shown to exist.
¶12In Soft Water Utilities, Inc. v. LeFevre, supra, the clerk “. . . gave false information to Soft Water.” Our Supreme Court reacted by stating that “We hold that this is a ‘reason justifying relief from the operation of the judgment.’ ” A much stronger case is made where the misinformation or the questionable participation of a trial court is involved in the *258forfeiture of an appeal. The actions taken by the trial court should be clear, decisive and final. Taken as a whole, the trial court’s actions should be beyond reproach where they may affect the litigant’s right to an appeal. Justice Hunter’s remarks in Soft Water Utilities, Inc. v. LeFevre, supra, 301 N.E.2d at 750 are most appropriate:
“We have reached the conclusion that the trial court has equitable discretion to grant relief pursuant to Trial Rule 60(B), under circumstances where it is satisfied that the administration of justice will be served by its action Certainly, the orderly procedure of our judicial system calls for adherence to rules designed to achieve that goal. But we should never ignore the plain fact that the consequence of strict adherence to procedural rules may occasionally defeat rather than promote the ends of justice. Similarly, if trial courts and courts of appeal were to rigidly apply Appellate Rule 2(A) in all cases, the provisions of Trial Rule 60(B) would be rendered meaningless. Such is not the desired effect of our flexible rules of procedure.”
¶13I would deny the State’s “motion to dismiss” the appeal.
¶14Note. — Reported at 306 N.E.2d 387.