718 F2d 972 Pacific Trencher and Equipment Inc Koehring Company v. M Nolden

718 F.2d 972

In re PACIFIC TRENCHER AND EQUIPMENT, INC., Debtor.
KOEHRING COMPANY and Koehring Finance Corporation,
Plaintiffs-Appellants,
v.
M. NOLDEN, Trustee in Bankruptcy, Credit American
Corporation and Credit Alliance Corporation,
Defendants-Appellees.

No. 83-1804.

United States Court of Appeals,
Ninth Circuit.

Oct. 21, 1983.

John Marchant, Mark S. Unger, Sedgwick, Detert, Moran & Arnold, Dennis Montali, Pillsbury, Madison & Sutro, San Francisco, Cal., for plaintiffs-appellants.

Peter J. Busch, Howard, Rice, Nemerovski, Canady, Robertson & Falk, Robert E. Phelan, Phelan & Stuppi, San Francisco, Cal., for defendants-appellees.

Before CHOY, ANDERSON and ALARCON, Circuit Judges.

ORDER

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1

The parties' joint petition for rehearing demonstrates that: (1) the "partial summary judgment" rendered in favor of defendant Nolden in the bankruptcy court was in fact a final disposition of all claims asserted by plaintiff against Nolden in the underlying adversary proceeding; (2) the order was subject to review by the Bankruptcy Appellate Panel under 28 U.S.C. Sec. 1482(a) and there was no need to seek the Panel's permission to appeal under 28 U.S.C. Sec. 1482(b); (3) the prior stipulation that this court lacked jurisdiction to review that order by virtue of the rule in In re Rubin, 693 F.2d 73 (9th Cir.1982), was incorrect; and (4) Bankruptcy Rule 754 is no obstacle to appellate review in this case.

2

The petition for rehearing is granted. The court's August 22, 1983 opinion dismissing this appeal is vacated. Appellants' opening brief shall be filed within 40 days of entry of this order.