In re Colby Milling, Inc.

JAMES E. DOYLE, District Judge.

This Chapter X reorganization proceeding was commenced by the filing of a voluntary petition by Colby Milling, Inc. (Colby), as debtor, on July 3, 1962. This petition prayed, among other things: “That the petition be approved and 120 days be given the petitioner to present a plan of reorganization. * *” Following a hearing, on notice, this court entered an order July 25,1962, approving the petition and granting petitioner 120 days within which to present a plan. On November 26, 1962, a petition was filed seeking an extension “of one hundred eighty (180) days from the date of expiration of the previous stay” within which to present a plan. Following a hearing, on notice, this court entered an order December 18, 1962, approving the petition. I construe the order of July 25, 1962, to have established November 22, 1962, as the deadline for filing a plan, and the order of December 18, 1962, to have established May 21, 1963, as the extended deadline.

No plan of reorganization had been submitted by the debtor or by any party, nor had there been any further proceedings of any kind in this Chapter X proceeding (No. 11,398), when, on May 21, 1964, there was filed in this court by Colby a voluntary petition in bankruptcy (BK-64-122(S)). A trustee was appointed in the bankruptcy proceeding.

On July 17, 1964, one of the attorneys for Colby executed an affidavit in this Chapter X proceeding (No. 11,398). The affidavit recites the history of the Chapter X proceeding, and adds that “after having determined that a reorganization under Chapter X was not feasible”, Colby had filed its voluntary petition in bankruptcy on May 21, 1964 (BK-64-122(S)). The affidavit was said to have been “made for the purpose of securing from this Court an order dismissing the said proceedings.” Without notice or hearing, and “on motion of Richard J. Weber as attorney for” Colby, this court entered an order July 22, 1964, dismissing the Chapter X proceeding.

The above proceedings have been brought to the court’s attention in connection with a certain petition for review in BK-64-122(S). In the course of deciding the said petition for review, I have been required to consider the manner in which termination of this Chapter X proceeding was attempted (No. 11,-398). I have concluded that the requirements of Section 236 of the Act are mandatory and that they have not been observed.

Accordingly, upon the court’s own motion, and upon the basis of the entire record herein, it is hereby ordered that the order entered herein July 22, 1964, dismissing this proceeding, is vacated, and this proceeding is reopened.