Opinion
Robert R. Hastings, of Crete, Neb., and Perry, Van Pelt & Marti, of Lincoln, Neb., for bankrupt.
McKillip & Barth, of Seward, Neb., for respondents.
MUNGER, District Judge.
The facts in this case are essentially the same as in the case of In re Joseph W. Kalina (D.C.) 9 F.Supp. 170, in which an opinion is filed of this date, except that the debtor in this case filed an amendment to his petition in this court, alleging that he has failed to obtain the acceptance of a majority in number and amount of his creditors whose claims were affected by a composition or extension proposal; and that he desires to obtain the benefits of section 75(s) of the Bankruptcy Act (11 USCA § 203(s). After the sheriff's sale of his lands, an unconditional confirmation of the order of sale was entered, and the sheriff executed and delivered to the other respondents a sheriff's deed to the lands, which was placed of record. A writ of assistance was then issued, and the petitioner seeks an injunction against the enforcement of this writ by the respondent sheriff.
For the reasons stated in the opinion filed in the Kalina Case, an injunction should issue to prevent the execution of this writ, unless the fact of filing of the amendment to the debtor's Petition, asking to be adjudicated a bankrupt under the terms of section 75(s), 11 USCA § 203(s), makes the terms of section 75(o), as amended, 11 USCA § 203(o), inapplicable.
Section 75(o) of the Bankruptcy Act, as amended, 11 USCA § 203(o) provides: '(o) Except upon petition made to and granted by the judge after hearing and report by the conciliation commissioner, the following proceedings shall not be instituted, or if instituted at any time prior to the filing of a petition under this section, shall not be maintained, in any court or otherwise, against the farmer or his property, at any time after the filing of the petition under this section, and prior to the confirmation or other disposition of the composition or extension proposal by the court.'
It appears in this case that the proceeding sought to be enjoined is one for recovery of possession of land, that it is sought to be maintained after the filing of the debtor's petition in this court under section 75(c), as amended, 11 USCA § 203(c) and it also appears that there has been no confirmation or other disposition by the court of any composition or extension proposal. The right to an injunction is therefore clearly conferred by the terms of section 75(o), as amended, 11 USCA § 203(o), and an order will be entered accordingly.