Opinion
SC 2305.
January 27, 1978.
Appeal from the Circuit Court, Mobile County, Hubert P. Robertson, J.
Robert E. Whitehead, pro se.
Lawrence B. Voit, Irving Silver, Mobile, for appellees.
Plaintiff, Robert E. Whitehead, brought an action against Clix Photo Centers, Inc., Baranco Color Labs, Inc., N. Barry Weinstein and Katie P. Weinstein, claiming that Clix Photo and Baranco owed him $6,519.73, the amount of a promissory note, plus interest at 8%. Plaintiff further alleged that defendants Barry and Katie Weinstein had guaranteed payment to the extent of 25% each of the unpaid balance of the note upon default by Clix Photo and Baranco. The defendants answered, generally denying the allegations and pleading special defenses including failure of consideration and fraud. Defendants counter-claimed, alleging that Whitehead's fraudulent acts were the proximate cause of damages they allegedly suffered in an amount of $70,000.
Whitehead was incarcerated in the federal prison in Atlanta on a federal conviction after he filed his action. He requested, and was granted, the right to prosecute his action pro se, after his counsel withdrew from the case.
Whitehead, on his own behalf, filed motions for summary judgment and requested the court to issue a writ of habeas corpus ad testificandum in order that he might appear at all pre-trial and trial proceedings. Both motions were denied.
The trial court granted Whitehead's request to appeal in forma pauperis. Rule 24, A.R.A.P. Whitehead took this appeal and raises two issues:
(1) The trial judge erred in denying his motion for summary judgment.
(2) The trial judge abused his discretion in refusing to grant his request for a writ of habeas corpus ad testificandum.
I
The defendants filed a motion to dismiss Whitehead's appeal from the order of the trial judge denying his motion for summary judgment. The motion to dismiss is well taken. An order denying summary judgment is interlocutory and is nonappealable unless by permission. 6 Moore's Federal Practice ¶ 56.21[2]; Dick v. First National Bank of Birmingham, 334 So.2d 922 (Ala.Civ.App. 1976).
Having dismissed the appeal, we pretermit consideration of Whitehead's argument that the trial judge should have granted his petition for a writ of habeas corpus ad testificandum.
The motion to dismiss the appeal from the order denying Whitehead's motion for summary judgment is granted.
APPEAL DISMISSED.
TORBERT, C.J., and JONES, SHORES and BEATTY, JJ., concur.