Warringer v. Warringer

Beasley, Judge,

concurring specially.

I concur in the dismissal, but not for the reason advanced. An application under OCGA § 5-6-34 (b) would not be appropriate in this case because the order was not entered during the pendency of the action but instead almost a month after it was concluded on the merits. The procedure provided for in OCGA § 5-6-34 (b) requires the applicant to show “the need” for appellate review of an interlocutory ruling which the trial court has certified “is of such importance to the case that immediate review should be had.” That cannot be done in this case because the court did not enter the order prior to conducting the hearing which it affected.

Appellant’s remedy, in the absence of a written order denying recusal, was to file a timely direct appeal from the judgment on the merits and in that appeal to enumerate as error the implicit or de facto denial of the motion or the court’s refusal to rule on it prior to the hearing, if the latter was the case. The appeal within 30 days of the order entered on the question of recusal is simply too late to appeal from the refusal of the trial judge to recuse herself.

*87Decided April 29, 1992. David R. Rogers, for appellant. Bivens & Hoffman, L. Brown Bivens, for appellee.