Morman v. Board of Regents of the University System of Georgia

198 Ga. App. 544 (1991) 402 S.E.2d 320

MORMAN
v.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.

A91A0520.

Court of Appeals of Georgia.

Decided February 11, 1991.

Walbert & Hermann, Paul D. Hermann, Paul W. Roop II, Herbert E. Phipps, for appellant.

Perry, Walters & Lippitt, Jesse W. Walters, Jones, Cork & Miller, Thomas C. Alexander, for appellees.

BEASLEY, Judge.

This is a direct appeal from an order denying a biological father's motion to intervene, OCGA § 9-11-24, as a plaintiff in an action for the wrongful death of his three-year-old illegitimate daughter. In the order, the court also made a determination that the father would not be entitled to any proceeds of the action. The parties had agreed that the court would determine the issue of judgment apportionment, see OCGA § 19-7-1 (C) (6), at the time it considered any right of intervention.

The denial of a motion to intervene is not a final judgment and thus, is reviewable under the interlocutory appeal procedure. See OCGA § 5-6-34; Wallace v. Bledsoe, 244 Ga. 674 (261 SE2d 399) (1979); Atlanta Dev. Co. v. Peel & Sons, 189 Ga. App. 453 (377 SE2d 552) (1988). The denial of apportionment in this pre-judgment circumstance is also an interlocutory matter inasmuch as the case is still within the breast of the trial court and subject to further action in this regard, although not with regard to movant.

Pursuant to the interlocutory appeal procedure, appellant obtained a certificate of immediate review from the court's order and petitioned this Court. The application for interlocutory appeal was dismissed because the certificate of immediate review was filed 16 days after issuance of the order sought to be appealed, making it untimely. See OCGA § 5-6-34 (b). The present direct appeal from the interlocutory ruling is unauthorized and therefore, must likewise be dismissed. Compare Kipp v. Rawson, 193 Ga. App. 532, 535 (4) (a) (388 SE2d 409) (1989) in which the failure to follow interlocutory appeal procedure was not fatal to consideration of a denial of intervention because the denial was reviewable as part of the timely review of a subsequent final judgment.

Appeal dismissed. Banke, P. J., and Carley, J., concur.