Howell

This is an appeal from an order, made on the motion of the appellee, dismissing with prejudice a farmer-debtor’s petition to effect a composition with his creditors or for extension of time to pay his debts. The petition was filed November 18, 1936, under section 75 of the Bankruptcy Act, as amended ( 11 U.S.C.A. § 203 ). The ground of dismissal was that the dismissal of a prior petition, filed May 11, 1936, by the same farmer-debtor was res judicata of the issues presented by the petition of November 18, 1936. There were no findings of fact or conclusions of law to indicate the ground of the previous dismissal.

The burden of proof to establish a prior adjudication of the same issue or issues between the same parties is upon the Federal Land Bank seeking dismissal on such grounds. Elliott Co. v. Roto Co. (C.C.A.2) 242 F. 941, 942 ; Vogel v. N. Y. Life Ins. Co. (C.C.A.5) 55 F.(2d) 205, 207 .

There is no presumption that because the farmer-debtor was not entitled to such bankruptcy relief at one period he would not be entitled to it six months later. One of the principal ultimate facts in both cases was the value of the petitioner’s estate with reference to its obligations upon…