Cottrill v. Pinkerton

• Decision Date: 08 December 1931
• Citation: 239 N.W. 442,206 Wis. 218
• Parties: COTTRILL v. PINKERTON.
• Court: Wisconsin Supreme Court

206 Wis. 218

239 N.W. 442

COTTRILL

v.PINKERTON.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from an order of the Circuit Court for Winnebago County; Fred Beglinger, Circuit Judge.Dismissed.

Action by the plaintiff, Katherine Cottrill, commenced on the 20th day of June, 1930, against the defendant, L. J. Pinkerton, to recover damages resulting from an automobile accident.From an order entered on the 11th day of December, 1930, overruling the defendant's plea in abatement, the defendant appeals.D. K. Allen and A. H. Gruenewald, both of Oshkosh, for appellant.

B. A. Husting and J. L. Kelley, both of Fond du Lac, for respondent.

OWEN, J.

The plaintiff, Katherine Cottrill, resided at Oshkosh.She was an employee of the Equitable Reserve Association at Neenah.While riding from Oshkosh to Neenah on the morning of the 11th day of March, 1930, the automobile in which she was riding collided with an automobile driven by the defendant.She brought this action against the defendant to recover the damages sustained by her in the collision.The defendant pleaded in abatement that she had accepted compensation from her employer, by reason of which her cause of action against the defendant was assigned, and that at the time of the commencement of the action she had no right to maintain the same.The plea in abatement was overruled by the court.The appeal is from that order.

The order is not appealable.It does not “in effect determine the action nor prevent a judgment from which an appeal might be taken.”Nor does it fall within any of the other classes of orders made appealable by the provisions of section 274.33.Notwithstanding the order, a trial of the action may be had on the merits, and the order of the court overruling the plea in abatement may be reviewed upon an appeal from the final...