Supreme Court of Alabama, 1977

Whitehead v. Baranco Color Labs, Inc.

Supreme Court of Alabama · Decided December 29, 1977 · Embry

353 So. 2d 793; 1977 Ala. LEXIS 2309 (Southern Reporter, Second Series)

Cases that cite this one

17 later published cases cite this decision.

Fahey v. CATV SUBSCRIBER SERVICES (Ala. 1990)
Parsons Steel, Inc. v. Beasley (Ala. 1988)
Swann v. Stovall (Ala. Civ. App. 1987)
Ala. River Grp., Inc. v. Conecuh Timber, Inc. (Ala. 2017)
Ala. River Grp., Inc. v. Conecuh Timber, Inc. (Ala. 2017)
Alabama Department of Industrial Relations v. Smith (Ala. Civ. App. 2010)
Veteto v. SWANSON SERVICES CORP. (Ala. 2003)
Simmons v. Congress Life Insurance (Ala. Civ. App. 1998)
Lightfoot v. McDonald (Ala. 1991)
Clements v. Moncrief (Ala. 1989)
Larry Wayne Whitson v. Charles Baker and Troy Howton (11th Cir. 1985)
Whitson v. Baker (Ala. 1985)
Hines v. City of Mobile (Ala. 1985)
Aguilar v. Spradlin (Ala. Civ. App. 1981)
Hubbard v. Montgomery (Ala. 1979)
Whitehead v. Baranco Color Labs, Inc. (Ala. Civ. App. 1978)
Whitehead v. BI-PETRO MARKETING, INC. (Ala. 1978)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

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 prose. 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.

IssuesThe 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.

IThe 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 ofBirmingham, 334 So.2d 922 (Ala.App., 1976). Moreover, this appeal is not one by permission pursuant to Rule 5, ARAP.

IIWhitehead 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 adtestificandum 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.

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