concurring.
I agree with the majority that Division 1 of Straus v. Straus, 260 Ga. 327 (393 SE2d 248) (1990) should be overruled, and that a party seeking to appeal an interlocutory order not otherwise subject to direct appeal must follow the requirements of OCGA § 5-6-34 (b). Thus, that party must obtain a certificate of immediate review from the trial court, and file his application to the appropriate appellate court within ten days of the date of that certificate. The purpose of OCGA § 5-6-34 (b), as noted by the majority, is to give the trial court absolute discretion in deciding whether to allow a party to apply for an appeal from an interlocutory order.
Although it appears interlocutory appeals should be governed exclusively by OCGA § 5-6-34 (b), a conflict arises from the language of OCGA § 5-6-35 (b) of the discretionary application statute, which brings interlocutory appeals into the purview of that section as well. It states that where the order appealed from is interlocutory “the application shall set forth, in addition to the enumeration of errors to be urged, the need for interlocutory appellate review.” The requirements of the discretionary application statute are more liberal than those of the interlocutory appeal statute, allowing appeals by application in specified cases without a certificate from the trial court, as well as a 30-day period in which to file the application.
In Straus v. Straus, supra, we were faced with the apparent conflicts between the requirements of the two sections — OCGA § 5-6-34 (b) (interlocutory appeals) and OCGA § 5-6-35 (discretionary appeals) — as applied to appeals from interlocutory orders in cases *590specified in OCGA § 5-6-35 (a). We chose the route of liberality of appeals, excusing the applicant from the more stringent requirements of the interlocutory appeal statute, OCGA § 5-6-34 (b).
Decided September 6, 1991 — Reconsideration denied October 3, 1991. Reinhardt, Whitley & Wilmot, Robert C. Wilmot, for appellant. Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Charles R. Reddick, for appellees.As noted by the majority, the problem with our approach and holding in Straus v. Straus, supra, is that it eviscerates the prerogative of the trial court to determine whether or not to permit an application for appeal from an interlocutory order. (Also, as noted by the majority, nowhere does the discretionary appeal statute excuse a party appealing an interlocutory order from the requirements of OCGA § 5-6-34 (b)). Because the holding in Straus v. Straus thus undermines the intent of OCGA § 5-6-34 (b), I agree to the reversal of that holding. I would also overrule C & S Nat. Bank v. Rayle, 246 Ga. 727 (273 SE2d 139) (1980) (relied on in Straus v. Straus) to the extent it is inconsistent with the majority’s holding in this case.
However, I would apply the holding in this opinion prospectively, and because Scruggs justifiably relied on Division 1 of Straus v. Straus, which we now overrule, I would not dismiss Scruggs’ appeal for failure to comply with OCGA § 5-6-34 (b).