Ivar Olsen, Appellant, v. Sverre Puntervold, Appellee.sverre Puntervold, Appellant v. Ivar Olsen, Appellee, 338 F.2d 21 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 338 F.2d 21 (5th Cir. 1964) October 29, 1964
Rehearing Denied December 1, 1964

N. J. Durant, Miami, Fla., for appellant.

Herbert F. Krensky, Miami, Fla., for appellee.

Before JONES and GEWIN, Circuit Judges, and ESTES, District Judge.


Ivar Olsen, plaintiff in the district court, appellant here, sought to recover in a diversity action in Florida from the appellee, Sverre Puntervold, on a judgment rendered in a New York Court against a partnership of which the appellee was a member in a case where no service was had on the appellee. The district court correctly held, in dismissing the complaint, that a judgment against a partnership is not binding upon a partner in his individual capacity where rendered in an action without service upon him.

The appellee, Puntervold, filed a counterclaim for malicious prosecution which the district court dismissed without prejudice. The counterclaim was premature and the dismissal was proper. 3 Moore's Federal Practice 36, Par. 13.13 n. 19.

The judgment of the district court is