Paul E. Durham et al., Appellees, v. Tasco, Inc., Appellant, 630 F.2d 612 (8th Cir. 1980)

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US Court of Appeals for the Eighth Circuit - 630 F.2d 612 (8th Cir. 1980)

Submitted Sept. 5, 1980. Decided Sept. 12, 1980


Paul L. Wickens, Jackson & Sherman, Kansas City, Mo., and Charles E. Rendlen, Jr., Rendlen, Rendlen & Ahrens, Hannibal, Mo., filed various pleadings for appellant, Tasco.

Terry M. Evans, Trenton, Mo., for appellee, Paul E. Durham, et al.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.


ORDER

This matter comes on to be heard upon the response of Tasco, Inc. to this court's order to show cause why the appeal should not be dismissed as an appeal from a nonappealable order and upon the petition for writ of mandamus filed subsequent thereto by Tasco, Inc.

The appeal is dismissed for the reason that the order appealed from is not final and no certification was granted by the district court under 28 U.S.C. § 1292(b).

Although we have some difficulty with that portion of the district court's order which denies petitioner the right to use expert witness (Dr. Flanigan) at trial, we decline to exercise our discretion to grant the writ requested. See In re Knight, 614 F.2d 1162, 1163 (8th Cir. 1980). We note, however, that this denial is without prejudice to petitioner raising this issue on any appeal that may be filed from the district court's final disposition of the case.

The petition for writ of mandamus is denied.