OLSEN v. PUNTERVOLD

PER CURIAM.

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

Affirmed.