Mancil v. JEFFREYS STEEL CO., INC.

532 So. 2d 1262 (1988)

William B. MANCIL v. JEFFREYS STEEL COMPANY, INC.

Civ. 6471.

Court of Civil Appeals of Alabama.

August 31, 1988.

James M. Prestwood of Prestwood & Prestwood, Andalusia, for appellant.

Wesley Pipes and Charles L. Miller, Jr. of Lyons, Pipes & Cook, Mobile, and M. Ashley McKathan of Powell, Powell & McKathan, Andalusia, for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

In October of 1982, Jeffreys Steel Company (Jeffreys) filed a complaint for recovery *1263 of chattels in specie and a motion for immediate writ of seizure against William B. Mancil. A writ of attachment order was issued in favor of Jeffreys.

On April 12, 1988, the first day of trial, Mancil filed a motion for summary judgment. The trial court denied Mancil's motion for summary judgment, but continued the case and granted Mancil permission to appeal.

Jeffreys filed a motion to dismiss the appeal on the grounds that the denial of the motion for summary judgment did not result in any injury to Mancil, was not a final order and, therefore, not the proper basis of appeal under Rule 4, Alabama Rules of Appellate Procedure, and that appeal by permission, Rule 5, A.R.A.P., was not applicable in this instance.

Jeffrey's motion to dismiss is well taken. An order denying summary judgment is interlocutory and is nonappealable unless by permission. Blanton v. Liberty Nat'l Life Ins. Co., 434 So. 2d 773 (Ala. 1983); Swann v. Stovall, 506 So. 2d 1017 (Ala.Civ.App.1987); Dick v. First National Bank of Birmingham, 334 So. 2d 922 (Ala. Civ.App.1976). Appeal by permission, Rule 5, A.R.A.P., is not applicable in this instance because the rule does not apply to cases appealable to the Court of Civil Appeals. Committee Comments, Rule 5, A.R. A.P.

The motion to dismiss the appeal from the order denying Mancil's motion for summary judgment is granted.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and is hereby adopted as that of the court.

APPEAL DISMISSED.

All the Judges concur.