Sarah B. Danning, Trustee in Bankruptcy of the Estate of Samuel N. Sherman, Dba Southern California College of Business, Bankrupt v. United States

This is a case where appellant urges that sovereign immunity is not in the case — only a question of whether the government consented to be sued by filing a claim in bankruptcy. But this is mere semantics, for if the government by its action “consented” to be sued, it had waived its sovereign immunity, even though its sovereignty was not in-paired.

There is but one question involved in this case. Does a court of bankruptcy have jurisdiction to hear and determine a counterclaim for affirmative relief asserted by the trustee in bankruptcy against the United States arising out of the same transaction as the claim filed by the government in the bankruptcy proceedings? The Referee in Bankruptcy held that it did not have such jurisdiction, and a petition for review was denied by the District Court. The appeal here is timely and proper. A recital of facts seems unnecessary.

It is apparently conceded by both parties here that if the United States Government were not the party claimant, and a mere creditor had filed a claim against the bankrupt’s estate, then the bankruptcy court would have jurisdiction to enter a summary judgment against the claimant upon a counterclaim asserted by the…