APPEALS AND WRITS OF ERROR
Appeals to the court of appeals.
Time for appeal to the court of appeals.
Relief pending appeal.
Permitted court actions pending appeal.
Further proceedings in trial court.
Reversal, affirmance or modification of judgment.
Review by the supreme court.
In this chapter:
"Appeal" means a review in an appellate court by appeal or writ of error authorized by law of a judgment or order of a circuit court.
"Appellate court" means the supreme court under ch. 751
or the court of appeals under ch. 752
History: 1977 c. 187
; 1991 a. 189
A party which accepts the benefits of a judgment does not waive the right to take an appeal which does not involve a reversal of that part of the judgment under which the benefit was received. Estreen v. Bluhm, 79 W (2d) 142, 255 NW (2d) 473.
Writ of error.
A writ of error may be sought in the court of appeals.
History: 1977 c. 187
Appeals to the court of appeals. 808.03(1)
Appeals as of right.
A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of the following:
Recorded in docket entries in traffic regulation cases prosecuted in circuit court if a person convicted of a violation may be ordered to pay a forfeiture.
Recorded in docket entries in municipal ordinance violation cases prosecuted in circuit court.
(2) Appeals by permission.
A judgment or order not appealable as a matter of right under sub. (1)
may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
Materially advance the termination of the litigation or clarify further proceedings in the litigation;
Protect the petitioner from substantial or irreparable injury; or
Clarify an issue of general importance in the administration of justice.
History: 1977 c. 187
; 1979 c. 192
; Sup. Ct. Order, 130 W (2d) xix (1986); 1995 a. 139
; 1997 a. 35
Cross-reference. See s. 767.15 (2) for appeals involving child support and maintenance.
Judicial Council Note, 1979: Sub. (1) is amended to modify the statutory definition of the final judgment or final order that may be appealed as a matter of right to the court of appeals. Most types of cases decided in circuit court have a final judgment or order entered with the office of clerk of court. Because of the volume of traffic regulation and municipal ordinance violation cases prosecuted in circuit court, the prevailing custom in Wisconsin counties is to only record the dispositions of those cases in docket entries. Requiring counties to meet the present statutory requirement in s. 808.03 (1) for the entry of a final judgment or order in all cases for purposes of having an appealable matter is unnecessarily burdensome and costly. The term "traffic regulation cases" refers to only those traffic violation cases in which the penalty is a civil forfeiture. [Bill 396-S]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended to clarify that docket entries in small claims and other ch. 799 cases may be final orders from which an appeal may be taken as of right. See 1979 Judicial Council Note to sub. (1). [Re Order eff. 7-1-86]
Appeal cannot be taken from order before it is entered. Ramsthal Adv. Agency v. Energy Miser, Inc. 90 W (2d) 74, 279 NW (2d) 491 (Ct. App. 1979).
See note to 805.15, citing Earl v. Marcus, 92 W (2d) 13, 284 NW (2d) 690 (Ct. App. 1979).
Test to determine whether decision is final order or judgment is whether trial court contemplated that additional formal document would be entered with respect to matter covered in decision. Frederick v. City of Janesville, 92 W (2d) 685, 285 NW (2d) 655 (1979).
Pretrial order denying motion to dismiss on double jeopardy grounds is nonfinal order appealable only under (2). State v. Jenich, 94 W (2d) 74, 288 NW (2d) 114 (1980).
Order waiving jurisdiction over juvenile is appealable under (2). State ex rel. A. E. v. Green Lake County Cir. Ct. 94 W (2d) 98, 288 NW (2d) 125 (1980).
See note to 974.05, citing State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
See note to 801.08, citing Heaton v. Independent Mortuary Corp. 97 W (2d) 379, 294 NW (2d) 15 (1980).
Orders relating to venue are appealable by permission under (2). Aparacor, Inc. v. DILHR, 97 W (2d) 399, 293 NW (2d) 545 (1980).
See note to 801.08, citing Grulkowski v. Dept. of Transp. 97 W (2d) 615, 294 NW (2d) 43 (Ct. App. 1980).
Order enjoining town from conducting incorporation referendum under 60.81 terminated only matter in litigation with respect to town, although ch. 66 incorporation proceedings had not been finally determined by the order. In re Incorporation of Town of Fitchburg, 98 W (2d) 635, 299 NW (2d) 199 (1980).
Court order setting aside an administrative order and remanding case to administrative agency was appealable as of right. Bearns v. DILHR, 102 W (2d) 70, 306 NW (2d) 22 (1981).
Where counterclaim for abuse of process, severed for trial, was not yet determined, judgment dismissing complaint was not appealable under (1). Brownsell v. Klawitter, 102 W (2d) 108, 306 NW (2d) 41 (1981).
Order for new trial is not appealable as of right. Wick v. Mueller, 105 W (2d) 191, 313 NW (2d) 799 (1982).
See note to 806.06, citing Radoff v. Red Owl Stores, Inc. 109 W (2d) 490, 326 NW (2d) 240 (1982).
Trial court did not have jurisdiction to award attorney's fees after filing of notice of appeal of another issue. In re Marriage of Hengel v. Hengel, 120 W (2d) 522, 355 NW (2d) 846 (Ct. App. 1984).
Court commissioner's order under 757.69 (1) dismissing criminal proceeding was not "final order" under 808.03 (1). State v. Trongeau, 135 W (2d) 188, 400 NW (2d) 12 (Ct. App. 1986).
Appellate court has no jurisdiction to review denial of postconviction motion if there is no final written order denying that motion on file in clerk of court's office. State v. Malone, 136 W (2d) 250, 401 NW (2d) 563 (1987).
Criminal defendant's right to appeal continues after death, regardless of cause of death. State v. McDonald, 144 W (2d) 531, 424 NW (2d) 411 (1988).
Judgment resolving merits of 42 USC 1983 action is final and appealable under (1) though attorney's fee issue remains unresolved. ACLU v. Thompson, 155 W (2d) 442, 455 NW (2d) 268 (Ct. App. 1990).
Circuit court's retained jurisdiction in board of review certiorari actions under 70.47(13) does not affect finality of order for appeal purposes. Steenberg v. Town of Oakfield, 157 W (2d) 674, 461 NW (2d) 148 (Ct. App. 1990).
See note to 343.305 citing State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
When an appeal is taken as a matter of right only the final document need be reduced to writing; nonfinal rulings need not be reduced to writing to be eligible for review under an appeal of a subsequent final order. Jacquart v. Jacquart, 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
The court of appeals should grant all petitions for interlocutory appeal from a circuit court order denying a state official's claim of qualified immunity under 42 USC 1983 if the order is based on an issue of law. Arneson v. Jezwinski, 206 W (2d) 216, 556 NW (2d) 721 (1996).
Like a judgment of foreclosure and sale in the case a mortgage, a judgment of strict foreclosure of a land contract is a final judgment which must be appealed from within the time required under s. 808.04. Hackman v. Behm, 207 W (2d) 439, 558 NW (2d) 905 (Ct. App. 1996).
An order on the merits of an action is final for purposes of appeal even though a request for litigation expenses is pending. Laube v. City of Owen, 209 W (2d) 12, 561 NW (2d) 785 (Ct. App. 1997).
A party may waive the right to appeal in a civil case where the party has caused or induced a judgment to be entered or has stipulated to the entry of judgment. By stipulating to the entry of a conditional judgment, a party could not obtain a mandatory appeal of an interlocutory order. Cascade Mountain, Inc. v. Capitol Indemnity Corp. 212 W (2d) 265, 569 NW (2d) 45 (Ct. App. 1997).
Wisconsin Court of Appeals Appellate Jurisdiction. Klein and Leavell. Wis. Law. Sept. 1991.
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
Time for appeal to the court of appeals. 808.04(1)
Initiating an appeal.
An appeal to the court of appeals must be initiated within 45 days of entry of judgment or order appealed from if written notice of the entry of judgment or order is given within 21 days of the judgment or order as provided in s. 806.06 (5)
, or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law.
An appeal under s. 227.60
shall be initiated within 15 days after entry of judgment or order appealed from.
Except as provided in subs. (4)
, an appeal in a criminal case or a case under ch. 48
shall be initiated within the time period specified in s. 809.30
Except as provided in sub. (7m)
, an appeal by the state in either a criminal case under s. 974.05
or a case under ch. 48
shall be initiated within 45 days of entry of the judgment or order appealed from.
When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party's death, whichever is later. If no personal representative qualifies within 60 days after the party's death, any appellant may have a personal representative appointed under s. 856.07 (2)
An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by s. 809.30 (2) (b)
within 40 days of the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (b)
, this time may not be enlarged.
An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by s. 809.107 (2)
within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (b)
, this time period may not be enlarged.
If the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof.
History: 1977 c. 187
; 1979 c. 32
s. 92 (9)
, (14); 1979 c. 89
; 1981 c. 152
; 1981 c. 314
; 1983 a. 183
; 1983 a. 491
; 1985 a. 182
; Sup. Ct. Order, 130 W (2d) xi, xix (1986); Sup. Ct. Order, 136 W (2d) xxv (1987); 1989 a. 56
; 1989 a. 192
; 1991 a. 39
; Sup. Ct. Order, 168 W (2d) xix (1992); 1993 a. 395
; 1995 a. 77
; 1997 a. 133
See s. 809.50
for time to file permissive appeals.
Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children's code cases. [Bill 151-S]
Effective date note
Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]
Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]
Notice under (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Ins. Co. 90 W (2d) 76, 279 NW (2d) 492 (Ct. App. 1979).
See note to 799.24, citing Mock v. Czemierys, 113 W (2d) 207, 336 NW (2d) 188 (Ct. App. 1983).
To shorten appeal period under (1), formal, captioned and signed notice of entry of judgment stating date of entry must be served on opposing party within 21 days of entry date and must be filed. In re Marriage of Soquet v. Soquet, 117 W (2d) 553, 345 NW (2d) 401 (1984).
Date stamped on judgment didn't control as to date of actual filing. Matter of Estate of Ristau, 144 W (2d) 421, 424 NW (2d) 203 (1988).