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LAWHORN v. ATLANTIC REFINING COMPANY

No. 18960.

299 F.2d 353 (1962)

Irwin H. LAWHORN, Appellant, v. The ATLANTIC REFINING COMPANY, Appellee.

United States Court of Appeals Fifth Circuit.

February 14, 1962.

Attorney(s) appearing for the Case

H. G. Rawls, Albany, Ga., Albert Mims Wilkinson, Jr., Bruce B. Edwards, Atlanta, Ga., for appellant.

James V. Davis, Albany, Ga., Charles J. Bloch, Ellsworth Hall, Jr., Bloch, Hall, Groover & Hawkins, Macon, Ga., Leonard Farkas, Farkas, Landau and Davis, Albany, Ga., for appellee.

Before TUTTLE, Chief Judge, and CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal brings into focus the relationship between F.R.Civ.P. 12(b)1 and 13(a), 28 U.S.C.A.,2 and it also raises the recurring problem of whether summary judgment was the proper remedy. The primary question is whether a compulsory counterclaim must be asserted, or lost, by the party whose motion to dismiss is successful because of a failure

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