SABADASH v. SCHAVO, 128 F.2d 923 (6th Cir. 1942)

SABADASH v. SCHAVO.

No. 9213.Circuit Court of Appeals, Sixth Circuit.
June 1, 1942.

Appeal from the District Court of the United States for the Eastern District of Michigan; Ernest A. O’Brien, Judge.

Suit by Elizabeth Schavo, administratrix of the estate of Anthony Bobin, deceased, against Mike I. Sabadash for personal injuries wherein judgment was rendered for plaintiff. From an order denying his petition to recall and perpetually stay execution upon such judgment, defendant appeals, and plaintiff moves to dismiss the appeal for want of appellate jurisdiction.

Appeal dismissed.

Hugh K. Davidson and Edgar A. Beauchamp, both of Detroit, Mich., for appellant.

Frederic T. Howard, George E. Day, and Samuel Reiss, all of Detroit, Mich., for appellee.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

PER CURIAM.

The appellant appeals from an order denying his petition to recall and perpetually stay execution upon a judgment rendered against him in a suit for personal injuries, the petition being grounded on the claim that the judgment had been discharged as to him by virtue of his subsequent adjudication and discharge in bankruptcy; and

It appearing that the judgment entered June 12, 1935, was, upon finding by the trial court, that the appellant was guilty of wanton and malicious negligence, it is now contended that this is not the equivalent of wilful and malicious injury to persons or property so as to exclude the judgment from the effect of the discharge by virtue of Sec. 17, Sub. a(2), of the Bankruptcy Act, 11 U.S.C.A. § 35, sub. a(2); but

It being the view of the court that the order denying the recall of the capias and stay of execution is not a final and appealable order upon the authority of Loeber v. Schroeder, 149 U.S. 580, at page 584, 585, 13 S.Ct. 934, 37 L.Ed. 856, and Glinski v. United States, 7 Cir., 93 F.2d 418, 419; and

A motion having been submitted to the court to dismiss the appeal for want of appellate jurisdiction;

It is ordered that the appeal be and it is hereby dismissed.