Estate of Bessie I. Mueller, Deceased, John S. Mueller, Personal Representative - Page 95

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            barred any affirmative recovery by the defendant.  The District                            
            Court agreed with the defendant and allowed an affirmative                                 
            recovery to the extent of $10,000.  However, it denied other,                              
            permissive counterclaims sought to be brought by the logger's                              
            surety, but only on the ground that these counterclaims were                               
            brought against the United States not in its capacity as trustee                           
            for the Indian tribes, but in its own capacity, so that they were                          
            unauthorized under Fed. R. Civ. P. 13, because sovereign immunity                          
            operated with respect to these other counterclaims.                                        
                  The fact that no statute-of-limitations problem figures in                           
            United States v. Timber Access Indus. Co., supra, does not                                 
            distinguish it from our case:  There, the doctrine of recoupment                           
            was needed to support the defendant's main counterclaim against                            
            the Government's claim of sovereign immunity, whereas in our case                          
            recoupment is needed to support petitioner's defense against the                           
            bar of the statute of limitations.  The fact that the defendant                            
            in United States v. Timber Access Indus. Co., supra, could still,                          
            after the decision in the case, bring suit in the Court of Claims                          
            for the balance of its counterclaim means that to limit                                    


                  40(...continued)                                                                     
            v. Timber Access Indus. Co., 54 F.R.D. 36 (D. Or. 1971), left                              
            open the possibility that the defendant logger could recover the                           
            balance of its counterclaim in the Court of Claims (as it was                              
            then called), 54 F.R.D. at 38-39.  The District Court held that                            
            allowing the $10,000 recovery in the District Court would not be                           
            the prohibited splitting of the cause of action.                                           





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