Martin v. Farrington

Banke, Chief Judge. Appellant Martin filed this direct appeal from the denial of his “Motion to Compel Settlement” of the case in accordance with the purported terms of a settlement agreement reached between the parties prior to trial. The case proceeded to trial on the same day the motion was denied, resulting in a verdict and judgment in favor of the appellee for an amount greater than the amount of the settlement offer. The appellant’s sole enumeration of error is directed to the denial of the motion to compel settlement. The appellee has moved to dismiss the appeal on the ground that it was neither taken from a final judgment nor authorized by prior application to this court for an interlocutory appeal. See generally OCGA § 5-6-34. Held: Where the notice of appeal specifies that the appeal is taken from an order which is not appealable and where the appeal is in fact taken from such an order, the appeal is subject to dismissal. See generally Parish v. Ga. R. Bank &c. Co., 115 Ga. App. 540 (154 SE2d 750) (1967); OCGA § 5-6-48 (b) (2). It being apparent from the notice of appeal and the enumeration of error in the present case that the appeal was actually intended to be taken from an interlocutory order rather than from the “final outcome” of the case, and no amendment having been filed to correct this defect, the motion to dismiss the appeal is hereby granted. Compare Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984); Blackwell v. Cantrell, 169 Ga. App. 795 (1) (315 SE2d 29) (1984). Appeal dismissed. Birdsong, P. J., and Sognier, J., concur. *228 Decided May 28, 1986. Lester B. Johnson III, for appellant. Louisa Abbot, for appellee.