Raymond Fiedler and his wife, Elizabeth Fiedler, filed a medical malpractice suit in state court against William H. Wood, a licensed chiropractor. After filing an answer denying the allegations, Wood filed a voluntary petition in bankruptcy, which operated as an automatic stay of the state court proceedings. See Bankruptcy Rule 401. The sole purpose of the bankruptcy proceedings was to seek a discharge of any debt Wood might owe the Fiedlers by reason of the state court litigation.

The Fiedlers filed a timely objection to Wood's discharge, seeking relief from the stay and claiming that the unlitigated state court action was founded on a claim for "willful and malicious injuries" which was not dischargeable under § 17(a)(8) of the Bankruptcy Act.1 Wood opposed the objection, asserting that the Act required an immediate determination of dischargeability and did not allow the bankruptcy court to defer the determination in an exercise of discretion.2 The bankruptcy court dissolved the stay and permitted the creditors to pursue the state court action. The bankruptcy court also extended the time for filing an objection to discharge to 20 days after the entry of judgment in the state proceedings.

The district court, the Honorable Edward J. Devitt, Chief Judge, presiding, affirmed the bankruptcy court's order. Judge Devitt held that while the bankruptcy court has exclusive jurisdiction to determine the question of discharge under § 17(a)(8), the 1970 amendments to § 17 did not abrogate the bankruptcy court's discretion under § 57(d) of the Act3 to choose the most appropriate means of claim liquidation. Additionally the district court found no abuse of discretion since Wood would still be solvent if found not liable to the Fiedlers and thus the litigation in the state court could render the bankruptcy proceeding unnecessary.

Wood appeals from the district court's order. We affirm.

Section 17 of the Act provides that only provable claims are dischargeable. Although the Fiedlers' claim meets the requirements of § 63(a)(7) of the Act,4 it has not yet been found provable since it is contingent and unliquidated under §§ 57(d) and 63(d) of the Act.5 Section 57(d) provides that contingent and unliquidated claims are to be liquidated or reasonably estimated "in the manner and within the time directed by the court." We find this language to be a grant of discretion to the bankruptcy court to choose the most appropriate means of claim liquidation. The bankruptcy court may, in the exercise of this discretion, await the determination of another court of competent jurisdiction. See Ex parte Baldwin, 291 U.S. 610, 619, 54 S. Ct. 551, 78 L. Ed. 1020 (1934); and 3 Collier on Bankruptcy P 57.15(3.2) (14th ed. 1976).

The question presented is whether Congress intended to abrogate this discretion with the 1970 amendments to the Bankruptcy Act. When courts are confronted with statutes "capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 2483, 41 L. Ed. 2d 290 (1974). See also Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S. Ct. 1989, 1993-94, 48 L. Ed. 2d 540 (1976); and FAA v. Robertson, 422 U.S. 255, 266, 95 S. Ct. 2140, 45 L. Ed. 2d 164 (1975). The legislative history of the 1970 amendments does not reveal a clear or manifest congressional intent to modify the bankruptcy court's discretion to choose the most appropriate means of claim liquidation. H.R.Rep.No.91-1502, 91st Cong., 2d Sess. (1970); and S.Rep.No.91-1173, 91st Cong., 2d Sess. (1970), U.S. Code Cong. & Admin. News 1970, p. 4156.

This result is not incompatible with the primary purpose of the 1970 amendments which was to "effectuate, more fully, the discharge in bankruptcy by rendering it less subject to abuse by harassing creditors." H.R.Rep.No.91-1502, supra at 1-2, U.S. Code Cong. & Admin. News 1970, p. 4156. Prior to the 1970 amendments the bankruptcy court determined the right to a discharge, but did not, except in certain circumstances, determine its effect. See Local Loan Co. v. Hunt, 292 U.S. 234, 54 S. Ct. 695, 78 L. Ed. 1230 (1934). The effect of a discharge was properly adjudicated in the non-bankruptcy forum when the creditor sued on his claim and the bankrupt pleaded his discharge as a defense. Since the discharge was an affirmative defense, it was waived unless properly asserted. The 1970 amendments were enacted to prevent creditors from instituting state court actions in the hope that the bankrupt would ignore the proceedings based on a misplaced reliance on the discharge or due to a lack of funds to defend. Cf. In re Urquhart, 427 F.2d 492 (8th Cir. 1970).

To allow the state court proceedings to continue under these circumstances does not subject the debtor to the abuses which the 1970 amendments were intended to prevent. The effectiveness of the debtor's discharge is not threatened as the bankruptcy court is deferring, not delegating, its responsibility under § 17(c)(3). Therefore we conclude that the bankruptcy court may, in an exercise of discretion, defer the determination of dischargeability until after the liquidation of the underlying claim in another court of competent jurisdiction.

In addition we find that the bankruptcy court did not abuse its discretion as the decision does not unduly delay the bankruptcy proceedings or unreasonably burden the debtor.

Affirmed.