John D. Brooks, an inmate of Kilby Prison, applied to a Judge of the Circuit Court of Montgomery County for the issuance of a writ of habeas corpus. The petition so presented was stricken on motion of the State.
Brooks appealed to the Court of Appeals, where the action of the Circuit Court was affirmed without consideration of the State's motion to strike the record and dismiss the appeal.
Brooks and the State each filed an application for rehearing in the Court of Appeals.
Thereafter Brooks and the State each filed a petition for writ of certiorari in this court.
The record of the Court of Appeals which accompanied the petitions for the writs showed that the Court of Appeals had ruled on only one application for rehearing. We could not determine whether such action was on the application for rehearing filed by the State or that filed by Brooks.
We remanded the cause to the Court of Appeals.
Following remandment the Court of Appeals has entered the following order:
"May 16, 1961 — Upon consideration after remandment — Appellant's application for rehearing overruled; Appellee's application for rehearing overruled —
Per Curiam"
Brooks, who was the appellant in the Court of Appeals, has filed in his own behalf what he calls a petition for writ of certiorari.
Brooks' so-called petition for writ of certiorari is denied on the authority of Griffin v. State, 258 Ala. 557,63 So.2d 682, cited in the opinion of the Court of Appeals. See also Ex parte Rockholt, 271 Ala. 68, 122 So.2d 162, certiorari denied354 U.S. 935, 81 S.Ct. 384, 5 L.Ed.2d 368.
The State of Alabama has also filed a petition for writ of certiorari. It is based on the alleged failure of the Court of Appeals to grant the State's motion to strike the record and dismiss Brooks' appeal to that court.
We will not pass on this procedural matter which was not treated in the Court of Appeals. See Lang v. State, 271 Ala. 1,122 So.2d 533.
The petitions for writ of certiorari are denied.
Writs denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. *Page 563