Seaton v. Aetna Casualty & Surety Co.

Beasley, Judge,

concurring specially.

I concur in the majority opinion and, with respect to Division 1, do so upon the following analysis.

Appeal may be sought from interlocutory rulings if the proper procedure is followed and the appellate court deems it wise to consider the matters raised at that interim stage rather than waiting until the case is finally concluded. OCGA § 5-6-34 (b). The complaining party may choose whether to seek such interlocutory review or abide until final judgment and then appeal of right under OCGA §§ 5-6-33 (a) (1) and 5-6-34 (a), calling into question the adverse interlocutory rulings. OCGA § 5-6-34 (d). As provided in that subsection (d), by proceeding to final judgment he does not waive a review of the interlocutory rulings, even if he does not seek a certificate from the trial judge or file an application with the appellate court. The rulings are preserved for consideration on direct appeal from the final judgment. See Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980).

Here, plaintiff elected not to interrupt the litigation and request permission of the trial court and the appellate court to review the discovery orders. Instead of incurring additional expense and delay, she chose to proceed as best she could to trial in hopes that the ad*549verse rulings would npt affect the final outcome. When it was reached unfavorably to her, she appealed. She has no quarrel with the trial itself or with the way in which the verdict and judgment were reached, except with respect to the discovery orders insofar as they kept documents from her perusal and use as evidence. Implicitly, the rulings if wrong arguably harmed her by restricting her proof at trial, so the rulings are not moot as contended by appellee.

The notice of appeal, filed within 30 days of the judgment as required by OCGA § 5-6-38 (a), contains as its first paragraph the following: “Notice is hereby given that the Plaintiff hereby appeals to the Court of Appeals from the Orders of the Trial Court entered in the case on 4/8/86, 6/10/86 and 11/10/86. Final judgment was entered in the case on 11/23/87.”

Applying OCGA § 5-6-48 (f), especially in the spirit of OCGA § 5-6-30 and the last sentence of OCGA § 5-6-48 (d), we are bound to consider the appeal. The notice itself, the timely filing of it as relates to the entry of the judgment, the portions of the record designated by appellant to be transmitted for our consideration, and the single enumeration of error, make sufficiently clear that the appeal is technically from the final judgment and that the alleged error is that it was infected by legally defective discovery rulings. The notice itself refers to the final judgment and identifies the date of the entry. It just does not state explicitly that this is what is appealed from, but that in-artfulness does not preclude review. The wording of the notice in this regard substantially complies with OCGA § 5-6-37 and the notice is complete and proper in all other respects. Thus it differs from the type found dismissible in Ballew v. State, 225 Ga. 547 (170 SE2d 242) (1969), and belongs in the category found adequate in Sanders v. Looney, 247 Ga. 379 (1) (276 SE2d 569) (1981), and in Johnson v. Daniel, 135 Ga. App. 926 (1) (219 SE2d 579) (1975).

The mistake in wording here is similar to that made by appellant in Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984). There the Supreme Court adhered to the more liberal treatment of notices of appeal which it had adopted in light of the language of the Appellate Practice Act. It eschewed the exactitude which had been required in earlier cases such as Interstate Fire Ins. Co. v. Chattam, 222 Ga. 436 (150 SE2d 618) (1966), which had resulted in dismissals. Instead, it expressly chose to “follow the route . . . toward less technical and more expeditious handling of cases involving minor procedural errors.” Id. at 59.

In doing so, the Supreme Court was consistent with the realistic approach, derived in obedience to Code Ann. § 6-809 (d) [OCGA § 5-6-48 (f)], which was applied in Housing Auth. of Douglas v. Marbut Co., 229 Ga. 403 (191 SE2d 785) (1972), a case decided several years *550after Interstate.1

The same more recently evolved application must be given here, and it leads to the same result. It is “apparent,” in the word used in Housing Auth., from what appellant has written and done, that she appeals from the final judgment. The notice of appeal was “sufficient to notify the opposing party,” in the words used in Steele, supra at 6°.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

Interstate was relied on as a basis for dismissal of appeal in Hurst v. Starr, 226 Ga. 42 (172 SE2d 604) (1970). Hurst in turn was the authority for requiring dismissal in Smith v. Sorrough, 226 Ga. 744 (177 SE2d 246) (1970). Both Hurst and Smith were overruled in Steele.