On Motion for Rehearing.
In his motion for rehearing, appellant asserts that our holding is in conflict with Ga. R. &c. Co. v. Lybrend, 99 Ga. 421 (27 SE 794) (1896). “The fact that Lybrend had made the waiver at a formal hearing before a different jury, and under circumstances necessarily to a greater or less extent unlike those surrounding the last trial, did not preclude him from exercising his privilege at a later stage of the case .. . Considered merely as any other witness, Lybrend therefore had a right to claim his privilege at the last trial, notwithstanding the fact that at a previous hearing of the case he may have voluntarily. waived it.” Lybrend, 99 Ga. at 439-441, supra. See also Mallin v. Mallin, 227 Ga. 833, 836 (3) (183 SE2d 377) (1971).
Unlike the Lybrend and Mallín decisions, the issue of waiver in the instant case is presented by Cohran’s total failure to assert the privilege in a timely and appropriate fashion, by invoking it in the trial court during the course of the original and only proceedings which have been held to determine whether Cohran’s answers were compellable. Vajtauer, 273 U. S. 103. In Lybrend and Mallin the witness originally waived his privilege and testified freely as to certain matters at a former trial but, at a subsequent de novo proceeding, invoked his privilege as to those matters. On these facts, it was held that the witness’ original testimony as to the incriminating matters was not an irrevocable waiver of the privilege and that he could “subsequently, at a second and entirely different trial, [claim] his privilege of giving no testimony whatever in regard thereto... A party often waives at one trial what he has an undoubted right to object to at a subsequent hearing of the same case.” Lybrend, 99 Ga. at 441, supra. In short, Lybrend and Mallin “simply [hold] that a party who [waives the privilege] at one trial may claim the privilege against self incrimination at a later trial.” Feig v. Feig, 246 Ga. 763, 764 (272 SE2d 723) (1980).
In direct contrast, Cohran’s actions with regard to the privilege — his original failure to assert it and his subsequent belated invocation of it in defense of his refusal to testify — occurred in the context of continuing proceedings in the same case, not de novo and separate trials. The issue is and always has been whether, to avoid being held in contempt, Cohran should answer certain questions in connection with pre-trial discovery in appellants’ only suit. However, *146after Cohran, 249 Ga. 510, supra, the rescheduling of Cohran’s deposition order that he purge himself of his original contempt was not a totally de novo hearing on the issue of whether Cohran should be compelled to answer the previously unaddressed questions. At that point, the trial court, this court and the Supreme Court had already held that Cohran should be compelled to answer the questions over all of the objections previously urged and that his refusal to do so was contempt. Where Cohran was aware of his privilege and could have asserted it before the trial court in defense of his original refusal to answer the questions, Cohran’s post-appeal invocation of the privilege is ineffective to purge his contempt. Thweatt, 58 Ga. 300, supra. See also Ryan, 89 Ga. 228, supra; Kingsbery, 92 Ga. 108, supra.
Our judgment affirming the trial court’s refusal to discharge Cohran for contempt is adhered to.
Motion for rehearing denied.