Whitehead v. Baranco Color Labs, Inc.

353 So. 2d 793 (1977)

Robert E. WHITEHEAD v. BARANCO COLOR LABS, INC., a corporation, et al.

SC 2253.

Supreme Court of Alabama.

December 29, 1977.

*794 Robert E. Whitehead, pro se.

Lawrence B. Voit and Irving Silver, Mobile, for appellees.

EMBRY, Justice.

In this case, Robert E. and Carol Whitehead filed a detinue action against Baranco Color Labs, Inc., to recover certain photographic equipment. Their attorney withdrew from the case and Robert E. Whitehead announced his intention to proceed pro se. His motion for summary judgment was denied; also his motion for writ of habeas corpus ad testificandum.

Robert E. Whitehead, pro se and in forma pauperis, appeals the denial of his motions. Appellees have filed a motion to dismiss the appeal. That motion will be granted.

The issues for review as presented by appellees may be stated:

1. Whether denial of a motion for summary judgment is an appealable order.

2. Whether an incarcerated prisoner-plaintiff in a civil action is entitled to be brought to court pursuant to a writ of habeas corpus ad testificandum so that he may personally testify in his own behalf.

The order which denied summary judgment is interlocutory in nature, not made appealable by statute, and will, therefore, not support an appeal. See Dick v. First National Bank of Birmingham, 334 So. 2d 922 (Ala.App., 1976). Moreover, this appeal is not one by permission pursuant to Rule 5, ARAP.

Whitehead is not entitled to have himself brought from the penitentiary to testify in his own behalf. His proper remedy was to take his own testimony, either upon written questions under Rule 31, ARCP, or upon oral examination under Rule 30, ARCP. In either event that testimony could have been used at trial. See Rule 32(a)(3)(C), ARCP. An appeal will not lie to review the writ because the common law writ of habeas corpus ad testificandum was, in these circumstances, superseded by Tit. 45, § 60, Code (1940), which, in turn, has been superseded by the Alabama Rules of Civil Procedure. See ARCP, Appendix II, Statutes and Rules Superseded. Also see Ex parte Brown, 206 Ala. 528, 91 So. 306 (1921).

APPEAL DISMISSED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.