Kennedy v. Waugh, 23 Wis. 468; Post v. Campbell, 110 Wis. 378, 85 N.W. 1032; Mallon v. Tonn, 163 Wis. 366, 157 N.W. 1098; Micek v. Wamka, 165 Wis. 97, 161 N.W. 367; Turner Mfg. Co. v. Gmeinder, 183 Wis. 664, 198 N.W. 611; Kaegi v. Industrial Commission, 232 Wis. 16, 285 N.W. 845. And it exists after the case has been remanded to the trial court following an affirmance by the Wisconsin Supreme Court. See Angers v. Sabatinelli, 235 Wis. 422, 293 N.W. 173; 239 Wis. 364, 1 N.W.2d 765. We conclude that appellant is not foreclosed under Wisconsin procedure from obtaining a determination in the Wisconsin courts of the commerce clause question either in the present suits or in the other pending one. Accordingly we do not think it is necessary to vacate the judgment below in order that appellant may have an opportunity to obtain the ruling.

He permitted a judgment on the merits to be entered against him. A judgment on the merits may be entered without a trial. Angers v. Sabatinelli (1942), 239 Wis. 364, 1 N.W.2d 765. "We recognize that under similar facts courts in other jurisdictions have held that the failure to plead over and a subsequent judgment of dismissal do not foreclose the commencement of a new action.

This decision rests within the sound discretion of the trial court. Selective Ins. Co. v. Michigan Mut. L. Ins. Co., 36 Wis.2d 402, 153 N.W.2d 523 (1967); Angers v. Sabatinelli, 239 Wis. 364, 1 N.W.2d 765 (1942). In sustaining the demurrer, the trial court stated:

He permitted a judgment on the merits to be entered against him. A judgment on the merits may be entered without a trial. Angers v. Sabatinelli (1942), 239 Wis. 364, 1 N.W.2d 765. "We recognize that under similar facts courts in other jurisdictions have held that the failure to plead over and a subsequent judgment of dismissal do not foreclose the commencement of a new action.

He permitted a judgment on the merits to be entered against him. A judgment on the merits may be entered without a trial. Angers v. Sabatinelli (1942), 239 Wis. 364, 1 N.W.2d 765. We recognize that under similar facts courts in other jurisdictions have held that the failure to plead over and a subsequent judgment of dismissal do not foreclose the commencement of a new action.

BARLOW, J. This action was before this court on two former appeals, and was reported in 235 Wis. 422, 293 N.W. 173, and 239 Wis. 364, 1 N.W.2d 765. The rights of the plaintiff are determined by the result of appellant cross complainant's claim, and we will therefore give first consideration to that matter. There is considerable controversy between the parties as to the nature of this action, respondents contending that appellant cross complainant, Employers Mutual Liability Insurance Company, seeks to recover damages by reason of conspiracy on the part of respondents, which it has no right to maintain.