Sturhahn v. General Household Utilities Co.

Fifth Circuit

Sturhahn v. General Household Utilities Co.

92 F.2d 415, 1937 U.S. App. LEXIS 4587

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 15, 1937

DocketNo. 8542

StatusPublished

This text of 92 F.2d 415 (Sturhahn v. General Household Utilities Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sturhahn v. General Household Utilities Co., 92 F.2d 415, 1937 U.S. App. LEXIS 4587 (5th Cir. 1937).

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Opinion

HOLMES, Circuit Judge.

This appeal is from a judgment of the District Court dismissing, for want of jurisdiction, appellant’s petition in an action for damages instituted against appellee, a nonresident, by attachment proceedings, the trial having proceeded to the conclusion of appellant’s introduction of evidence, and appellee having moved for a nonsuit because of an alleged variance between pleadings and proof.

The record here contains only the pleadings and judgment of dismissal together with a transcript of the oral opinion and ruling of the court below, and an order making the same a part of the record. From this it appears that at some time during the trial the court concluded that it did not have jurisdiction because, at the time the attachment was sued out, appellee was undergoing reorganization in another court under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). At the time the ruling was made, the court had before it a proposed amendment to the declaration in attachment, as well as the above-mentioned motion for a nonsuit. The order recites that the dismissal is for want of jurisdiction, but neither the order nor the opinion discloses whether the court reached its conclusion from the pleadings or the evidence. Since the record does not disclose the evidence upon which the ruling of the court may have been based, and which may have supported it, we cannot say that the court was in error. Spruill v. Crawford, 64 App.D.C. 118, 75 F.(2d) 522; certiorari denied, 294 U.S. 714, 55 S.Ct. 513, 79 L.Ed. 1247; Turner v. Board of Public Instruction (C.C.A.) 75 F.(2d) 147.

It is urged that the legal conclusion upon which the judgment is based is shown [416]*416by the opinion of the court to have been based upon facts set out in the pleadings. However, the opinion does not so state. While jurisdiction of the court may not have been wanting solely because of the pendency of the bankruptcy proceeding, we must assume, in the absence of a bill of exceptions, that the facts were before the court which showed a lack of jurisdiction. Auzenne v. American Book Bindery Co., 64 App.D.C. 330, 78 F.(2d) 214; American National Red Cross v. Raven Honey Dew Mills (C.C.A.) 74 F.(2d) 160.

The judgment appealed from is affirmed.

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HOLMES, Circuit Judge.

This appeal is from a judgment of the District Court dismissing, for want of jurisdiction, appellant’s petition in an action for damages instituted against appellee, a nonresident, by attachment proceedings, the trial having proceeded to the conclusion of appellant’s introduction of evidence, and appellee having moved for a nonsuit because of an alleged variance between pleadings and proof.

The record here contains only the pleadings and judgment of dismissal together with a transcript of the oral opinion and ruling of the court below, and an order making the same a part of the record. From this it appears that at some time during the trial the court concluded that it did not have jurisdiction because, at the time the attachment was sued out, appellee was undergoing reorganization in another court under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). At the time the ruling was made, the court had before it a proposed amendment to the declaration in attachment, as well as the above-mentioned motion for a nonsuit. The order recites that the dismissal is for want of jurisdiction, but neither the order nor the opinion discloses whether the court reached its conclusion from the pleadings or the evidence. Since the record does not disclose the evidence upon which the ruling of the court may have been based, and which may have supported it, we cannot say that the court was in error. Spruill v. Crawford, 64 App.D.C. 118, 75 F.(2d) 522; certiorari denied, 294 U.S. 714, 55 S.Ct. 513, 79 L.Ed. 1247; Turner v. Board of Public Instruction (C.C.A.) 75 F.(2d) 147.

It is urged that the legal conclusion upon which the judgment is based is shown [416]*416by the opinion of the court to have been based upon facts set out in the pleadings. However, the opinion does not so state. While jurisdiction of the court may not have been wanting solely because of the pendency of the bankruptcy proceeding, we must assume, in the absence of a bill of exceptions, that the facts were before the court which showed a lack of jurisdiction. Auzenne v. American Book Bindery Co., 64 App.D.C. 330, 78 F.(2d) 214; American National Red Cross v. Raven Honey Dew Mills (C.C.A.) 74 F.(2d) 160.

The judgment appealed from is affirmed.

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92 F.2d 415, 1937 U.S. App. LEXIS 4587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sturhahn-v-general-household-utilities-co-ca5-1937.

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