Piel v. Harvard Interiors Manufacturing Co., 73-1494.
| Decision Date | 29 January 1974 |
| Docket Number | No. 73-1494.,73-1494. |
| Parties | Bernard W. PIEL, d/b/a Elliot Tool and Manufacturing Company, Appellant, v. HARVARD INTERIORS MANUFACTURING COMPANY, a Division of Harvard Industries, Inc., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert E. Staed, St. Louis, Mo., filed brief for appellant.
Richard D. FitzGibbon, Jr., Lowenhaupt, Chasnoff, Freeman, Holland & Mellitz, St. Louis, Mo., for appellee. Appellee's counsel did not file brief.
Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
Plaintiff filed suit in the Circuit Court of St. Louis (Mo.) seeking recovery in money damages arising out of delivery of goods and materials to the defendant. The defendant, alleging that the parties had diversity of citizenship and that the amount in controversy complied with the jurisdictional requirements, removed the suit to the United States District Court for the Eastern District of Missouri. Having failed to file any responsive pleading, the defendant, on February 6, 1973, suggested that it was in bankruptcy and that the suit should be removed from the trial docket. On July 2, 1973, the district court recited that the defendant was presently in a Chapter XI bankruptcy proceeding in the Federal District Court in New Jersey, and dismissed the action without prejudice.1
Plaintiff appealed to this court alleging that the district court should have stayed the litigation rather than dismissed the suit. Appellee has failed to file a brief in this court.
We are satisfied that this court has appellate jurisdiction since a dismissal without prejudice is a final order for purposes of review. See United States v. Wallace Co., 336 U.S. 793, 794-795 n. 1, 69 S.Ct. 824, 93 L.Ed. 1042 (1949); 9 Moore's Federal Practice ¶ 110.131.
We feel the court erred in dismissing the action rather than granting a stay. Title 11 U.S.C. § 29 provides in part:
(a) A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition by or against him, shall be stayed until an adjudication or the dismissal of the petition * * *. (emphasis added).
Title 11 U.S.C. § 714 (relating to Chapter XI proceedings) provides in part:
The court may, in addition to the relief provided by section 11 of this Act § 29 of this title and elsewhere under this chapter, enjoin or stay until final decree the...
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...court dismissed those claims without prejudice, which is a final order for the purposes of section 1291. Piel v. Harvard Interiors Manufacturing Co., 490 F.2d 1272 (8th Cir. 1974). We turn first to the Johnstons' claim that the district court erred in determining that the loan guaranty fee ......
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...Collier on Bankruptcy ¶¶ 11.01–.08. Johnson Dry Goods Co. v. Drake, 219 Ala. 140, 121 So. 402 (1929). See Piel v. Harvard Interiors Manufacturing Co., 490 F.2d 1272 (8th Cir.1974)."There is no indication of the progress or status of the bankruptcy petition. The stay may have been, or may so......
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...Collier on Bankruptcy ¶¶ 11.01-.08. Johnson Dry Goods Co. v. Drake, 219 Ala. 140, 121 So. 402 (1929). See Piel v. Harvard Interiors Manufacturing Co., 490 F.2d 1272 (8th Cir. 1974)."There is no indication of the progress or status of the bankruptcy petition. The stay may have been, or may s......
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