(2) Cost bill, service.
All bills of costs shall be itemized and served with the notice of taxation.
(3) Objections, proofs, adjournment.
The party opposing such taxation, or the taxation of any particular item shall file with the clerk a particular statement of the party's objections, and the party may produce proof in support thereof and the clerk may adjourn such taxation, upon cause shown, a reasonable time to enable either party to produce such proof.
(4) Court review.
The clerk shall note on the bill all items disallowed, and all items allowed, to which objections have been made. This action may be reviewed by the court on motion of the party aggrieved made and served within 10 days after taxation. The review shall be founded on the bill of costs and the objections and proof on file in respect to the bill of costs. No objection shall be entertained on review which was not made before the clerk, except to prevent great hardship or manifest injustice. Motions under this subsection may be heard under s. 807.13
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.10; Sup. Ct. Order, 141 W (2d) xxvi; 1987 a. 403
; 1993 a. 486
; 1995 a. 224
Judicial Council Note, 1988: Sub. (4) is amended to allow motions to review costs to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
Where the court included excessive attorney's fees in the judgment and the clerk did not tax costs, appellant need not ask for review under sub. (4) and can object on appeal. Running v. Widdes, 52 W (2d) 254, 190 NW (2d) 169.
Disbursements, how proved.
Charges in a bill of costs for witness fees, or copies of documents or other disbursements, except to officers for services shall not be taxed without an affidavit stating the distance the witnesses respectively traveled and the days they actually attended, and an affidavit that such copies were necessarily obtained for use; nor shall such other disbursements be allowed without an affidavit specifying the items thereof, nor unless they appear to have been necessary and reasonable in amount.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.11.
Costs may be set off.
If, in any action, a recovery be had by one party and costs be awarded to the other the court may set off one against the other and render judgment for the balance.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.12.
Referee; court to fix and allow fees.
After the trial of any issue by a referee pursuant to a compulsory reference for that purpose his or her fees and expenses shall be fixed by the court in which his or her report has been filed and paid by the state as other circuit court expenses are paid. In all other cases the compensation of referees shall be $3 for each day necessarily occupied with the business of the reference; but the parties may agree in writing upon any other rate of compensation.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.13; 1977 c. 449
Taxing costs on compulsory references.
In all cases of compulsory reference wherein the fees claimed by the referee shall exceed fifty dollars, such fees shall not be allowed until a hearing is had thereon, upon ten days' notice to the district attorney of the county, accompanied by a copy of the bill.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.131.
Fiduciary; liability for costs limited; bond premium.
In any action or proceeding prosecuted or defended in any court in Wisconsin by an executor, administrator, guardian ad litem, trustee of an express trust, general guardian or a person expressly authorized by statute, unless otherwise specially provided, costs shall be recovered as in an action by and against a person prosecuting or defending in the person's own right; but such costs shall be chargeable only upon or collected of the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action, proceeding or defense. In all actions or proceedings in which any receiver, assignee, guardian, guardian ad litem, executor, administrator, or other fiduciary may be entitled to recover costs the fiduciary may recover in addition to other costs, such sum paid a company authorized by the laws of this state, so to do for becoming the fiduciary's surety upon any bond or other obligation given by the fiduciary in the fiduciary's representative capacity, in such action or proceeding, pursuant to law or the order of any court or judge, as may be allowed by the court or judge, in which or before whom the fiduciary accounts, not exceeding 2% per year on the amount secured by such obligation, or any less amount which the fiduciary may have paid any such company for such purpose.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.14; 1979 c. 110
s. 60 (13)
; 1993 a. 486
Assignee's liability for costs.
In actions in which the cause of action shall, by assignment, after the commencement of the action or in any other manner become the property of a person not a party to the action the person shall be liable for the costs in the same manner as if the person were a party; and payment thereof may be enforced by attachment.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.15; 1993 a. 486
Settlement, costs on.
Except as provided in s. 93.20
, upon settlement of an action no greater sum may be demanded for costs than at the rate prescribed in this chapter.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.16; 1991 a. 39
Records copied not to be taxed for.
No record, writ, return, pleading, instrument or other writing copied into any proceeding, entry, process or suggestion shall be computed as any part of the draft of such proceeding, entry, process or suggestion.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.19.
What county to pay costs when venue changed or jury selected for use in another county, taxation, certification. 814.22(1)(1)
In all proceedings, including criminal actions, if a change of venue is had (except in cases where the change is made because the action was not brought in the proper county), the jury is selected for use in another county under s. 971.225
or an action, occupying a day or more, is tried outside the county wherein pending, the county in which the action was commenced shall pay to the county in which the action is tried or the jury is selected the following expenses arising out of the change of venue or jury selection:
The per diem fees of the clerk or the clerk's deputies, all the taxable costs, disbursements and fees of such clerk on any proceeding or action.
The per diem fees of the petit jurors actually in attendance upon said court.
The per diem fees of the sheriff, undersheriff and deputies in attendance upon said court.
The legal fees of all witnesses in any criminal case or proceedings which are a charge against the county.
All charges for subpoenaing witnesses in any criminal case or proceedings and which are a proper charge against the county. The fees of such officers and jurors shall be estimated for each day and part of a day, not less than half a day, occupied in disposing of any such action.
Such other lawful costs, charges, fees, and disbursements which are chargeable to the county, and all lawful costs, disbursements and charges which any such county may be subjected to or may incur in any such action or proceedings.
The clerk shall make out a correct bill of all the expenses which shall accrue under this section and have the bill taxed and allowed by the presiding judge of the court; and when so taxed shall transmit the bill to the county clerk of the county in which the action was commenced. A county order therefor shall issue in favor of the county in which the action or proceedings were had or tried or in which the jury was selected.
If costs are to be taxed against a county under this section, the district attorney of the county where the action or proceeding was tried or in which the jury was selected shall serve upon the district attorney of the county sought to be charged with the expense a copy of the bill of expenses, together with 8 days notice of the time and place the bill will be taxed before the presiding judge of the court. No such bill of expense may be allowed unless the notice is given or is waived in writing.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.22; 1977 c. 449
; 1981 c. 115
; 1993 a. 486
Actions by or against county.
In all actions by or against a county, and in actions or proceedings by or against county officers in their name of office, costs shall be awarded to the prevailing party as in actions between individuals.
History: Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.23.
Prevailing plaintiff in habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke, 79 W (2d) 22, 255 NW (2d) 446.
Action against city, village or town official, cost.
Costs, if any, in an action against a city, village or town officer in his or her official capacity, except an action directly involving the title to the office, shall not be awarded against that officer, but may be awarded against the city, village or town.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.24; 1993 a. 246
Actions by state agencies. 814.245(1)
The legislature intends that courts in this state, when interpreting this section, be guided by federal case law, as of November 20, 1985, interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504
"Small business" means a business entity, including its affiliates, which is independently owned and operated, and which employs fewer than 25 full-time employes or which has gross annual sales of less than $2,500,000.
"Small nonprofit corporation" means a nonprofit corporation which employs fewer than 25 full-time employes.
"State agency" does not include the citizens utility board.
"Substantially justified" means having a reasonable basis in law and fact.
If an individual, a small nonprofit corporation or a small business is the prevailing party in any action by a state agency or in any proceeding for judicial review under s. 227.485 (6)
and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
In determining the prevailing party in actions in which more than one issue is contested, the court shall take into account the relative importance of each issue. The court shall provide for partial awards of costs under this section based on determinations made under this subsection.
If the court awards costs under sub. (3)
, the costs shall include all of the following which are applicable:
The reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test or project which is found by the court to be necessary for the preparation of the case and reasonable attorney or agent fees. The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that:
No expert witness may be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency which is the losing party.
Attorney or agent fees may not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents, justifies a higher fee.
A party seeking an award under this section shall, within 30 days after final judgment in the action, submit to the clerk under s. 814.10 (1)
an itemized application for fees and other expenses, including an itemized statement from any attorney or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. Section 814.10
applies for the procedure for taxation of costs, except that the clerk shall allow the state agency 15 working days to respond under s. 814.10 (3)
The court acting under s. 814.10 (4)
may reduce the amount awarded under this section or deny an award if it finds that the prevailing party engaged in conduct which unduly and unreasonably delayed the action.
An individual is not eligible to recover costs under this section if the person's properly reported federal adjusted gross income was $150,000 or more in each of the 3 calendar years or corresponding fiscal years immediately prior to the commencement of the action. This subsection applies whether the person files the tax return individually or in combination with a spouse.
If a state agency is ordered to pay costs under this section, the costs shall be paid from the applicable appropriation under s. 20.865 (1) (a)
Each state agency that is ordered to pay costs under this section or that recovers costs under sub. (11)
shall report annually, as soon as is practicable after June 30, to the presiding officer of each house of the legislature the number, nature and amounts awarded, the claims involved in the action in which the costs were incurred, the costs recovered under sub. (11)
and any other relevant information to aid the legislature in evaluating the effect of this section.
If the court finds that the motion under sub. (3)
is frivolous, the examiner may award the state agency all reasonable costs in responding to the motion. In order to find a motion to be frivolous, the court must find one or more of the following:
The motion was submitted in bad faith, solely for purposes of harassing or maliciously injuring the state agency.
The party or the party's attorney knew, or should have known, that the motion was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Petitioner must receive at least some of requested relief in order to "prevail" under (3). Kitsemble v. DHSS, 143 W (2d) 863, 422 NW (2d) 896 (Ct. App. 1988).
30-day period in (6) commences at time matter is disposed of in favor of party following remand to administrative agency. Sheely v. DHSS, 150 W (2d) 320, 442 NW (2d) 1 (1989).
Security for costs.
Except as provided in s. 655.27 (5) (a) 3.
, in all cases where it shall appear reasonable and proper the court may require the plaintiff to give sufficient security for such costs as may be awarded against the plaintiff.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.27; 1983 a. 158
; 1993 a. 486
Security for costs. 814.28(1)(1)
Defendant may require.
Except as otherwise provided by s. 814.29
, the defendant may require the plaintiffs to file security for costs if the plaintiffs are all nonresidents; or are foreign corporations, nonresident executors, administrators, guardians, trustees or receivers; or are trustees or assignees of any debtor; or are imprisoned for crime for terms less than life; or shall take issue upon the answer of the garnishee.
(2) Order for security.
Upon proof by affidavit entitling the defendant thereto the court or judge shall order the plaintiffs to file security for costs in a sum therein mentioned, not less than two hundred and fifty dollars, within twenty days after the service upon them of a copy of such order, and that all proceedings on the part of such plaintiffs be stayed until security is filed.
(3) Security, how given.
Within the time required the plaintiffs shall file with the clerk of the court, and give the defendant notice thereof, an undertaking with sureties, each of whom shall justify, by affidavit, in the sum stated in the undertaking, above liabilities and exemptions, in property in this state, conditioned to pay on demand all costs that may be awarded to the defendant in such action in any court, not exceeding the sum mentioned in such order. Upon failure to file such undertaking the court may, upon motion of the defendant, dismiss the action.
(4) Deposit in lieu of undertaking.
The plaintiffs in lieu of such undertaking may deposit with the clerk of the court (who shall give a receipt therefor) money equal to the amount specified in the order for security, and give notice of such deposit.
History: Sup. Ct. Order, 67 W (2d) 585, 761, 780 (1975); Stats. 1975 s. 814.28.
Security for costs, service and fees for indigents. 814.29(1)(a)(a)
Any person may commence, prosecute or defend any action or proceeding in any court, or any writ of error or appeal therein, without being required to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or proceeding, or any writ of error or appeal therein, or to give security for those costs.
A person seeking an order under par. (a)
shall file in the court an affidavit in the form prescribed by the judicial conference, setting forth briefly the nature of the cause, defense or appeal and facts demonstrating his or her poverty.
The finding and order of the court under par. (a)
shall be in the form prescribed by the judicial conference. The court may deny the request for an order if the court finds that the affidavit states no claim, defense or appeal upon which the court may grant relief.
The court shall make a finding of poverty and issue an order under par. (a)
if the affidavit demonstrates any of the following:
That the person is a recipient of means-tested public assistance, including aid to families with dependent children, relief funded by a relief block grant under ch. 49
, relief provided by counties under s. 59.53 (21)
, medical assistance, supplemental security income, food stamps or benefits received by veterans under s. 45.351 (1)
or under 38 USC 501
That the person is represented by an attorney through a legal services program for indigent persons, including, without limitation, those funded by the federal legal services corporation, the state public defender or volunteer attorney programs based on indigency.
That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal or to give security for those costs. In determining the person's ability under this subdivision to pay or give security for fees and costs, the court shall consider the person's household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC 9902
The court may dismiss any action or proceeding or may require the payment of, or the giving of security for, costs, fees and service if the court determines that the allegation of poverty is untrue. The court may later require the payment of, or the giving of security for, costs, fees and service if the court determines that the person no longer meets any of the requirements under sub. (1)
A request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent of the affiant and counsel for the affiant that if the judgment is in favor of the affiant the court may order the opposing party to first pay the amount of unpaid fees and costs, including attorney fees under ss. 802.05
, 804.12 (1) (c)
and under 42 USC 1988
and to pay the balance to the plaintiff.
If the affiant is a prisoner, as defined in s. 46.011 (2)
, or a person confined in a federal correctional institution located in this state, a request for leave to commence or defend an action, proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent as provided in par. (a)
, and, if the judgment is in favor of the opposing party, constitutes consent for the court to order the institution to deduct the unpaid fees and costs, including attorney fees listed in par. (a)
, from the amount in the inmate's account at the time the judgment was rendered.
Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 814.29; 1981 c. 317
; 1983 a. 538
; 1989 a. 31
; Sup. Ct. Order No. 93-15
, 179 W (2d) xxxi; 1993 a. 490
; 1995 a. 27
Judicial Council Note, 1993: The amendments to sub. (1) are intended to simplify and make more uniform the procedure for determining when costs and fees for indigent persons should be waived by the court. The form of the affidavit and court finding and order is to be prescribed by the Judicial Conference. To simplify the determination of indigency, detailed financial statements are not necessary if the person is receiving means-tested public assistance or legal services based on indigency. Amended sub. (2) allows the court to require payment of fees if it is later shown that the person is no longer indigent.
Trial judge may refuse approval of affidavit of indigency, where complaint or affidavit to obtain waiver of costs and fees failed to give notice of claim upon which relief may be granted. State ex rel. Rilla v. Dodge County Cir. Ct. 76 W (2d) 429, 251 NW (2d) 476.