(2) Tender after action commenced.
A tender may be made after an action is brought on the contract of the whole sum then due, plus legal costs of suit incurred up to the time, at any time before the action is called for trial. The tender may be made to the plaintiff or attorney, and if not accepted the defendant may plead the same by answer or supplemental answer, in like manner as if it had been made before the commencement of the action, bringing into court the money so tendered for costs as well as for debt or damages.
(3) Proceedings on acceptance of tender.
If the tender is accepted the plaintiff or attorney shall, at the request of the defendant, sign a stipulation of discontinuance of the action for that reason and shall deliver it to the defendant; and also a certificate or notice thereof to the officer who has any process against the defendant, if requested. If costs are incurred for any service made by the officer after the tender is accepted and before the officer receives notice of the acceptance, the defendant shall pay the costs to the officer or the tender is invalid.
(4) Involuntary trespass.
A tender may be made in all cases of involuntary trespass before action is commenced. When in the opinion of the court or jury a sufficient amount was tendered to the party injured, agent or attorney for the trespass complained of, judgment shall be entered against the plaintiff for costs if the defendant kept the tender good by paying the money into court at the trial for the use of the plaintiff.
(5) Payment into court of tender; record of deposits. 895.14(5)(a)(a)
When tender of payment in full is made and pleaded, the defendant shall pay the tender in full into court before the trial of the action is commenced and notify the opposite party in writing, or be deprived of all benefit of the tender. When the sum tendered and paid into court is sufficient, the defendant shall recover the taxable costs of the action, if the tender was prior to the commencement of the action. The defendant shall recover taxable costs from the time of the tender, if the tender was after suit commenced.
When any party, pursuant to an order or to law, deposits any money or property with the clerk of court, the clerk shall record the deposit in the minute record describing the money or property and stating the date of the deposit, by whom made, under what order or for what purpose and shall deliver a certificate of these facts to the depositor, with the volume and page of the record endorsed on the certificate.
History: 1981 c. 67
; 1983 a. 192
; 1983 a. 302
; Stats. 1983 s. 895.14.
January 1, January 15, the 3rd Monday in February (which shall be the day of celebration for February 12 and 22), the last Monday in May (which shall be the day of celebration for May 30), July 4, the 1st Monday in September which shall be known as Labor day, the 2nd Monday in October, November 11, the 4th Thursday in November (which shall be the day of celebration for Thanksgiving), December 25, the day of holding the September primary election, and the day of holding the general election in November are legal holidays. On Good Friday the period from 11 a.m. to 3 p.m. shall uniformly be observed for the purpose of worship. In every 1st class city the day of holding any municipal election is a legal holiday, and in every such city the afternoon of each day upon which a primary election is held for the nomination of candidates for city offices is a half holiday and in counties having a population of 500,000 or more the county board may by ordinance provide that all county employees shall have a half holiday on the day of such primary election and a holiday on the day of such municipal election, and that employees whose duties require that they work on such days be given equivalent time off on other days. Whenever any of said days falls on Sunday, the succeeding Monday shall be the legal holiday.
History: 1971 c. 226
; 1973 c. 140
; 1977 c. 187
; Stats. 1977 s. 757.17; 1983 a. 7
; 1983 a. 192
; Stats. 1983 s. 895.20.
Wisconsin family month, week and Sunday.
The month of November, in which the celebration of Thanksgiving occurs, is designated as Wisconsin Family Month, the first 7 days of that month are designated as Wisconsin Family Week and the first Sunday of that month is designated as Family Sunday. In conjunction therewith, appropriate observances, ceremonies, exercises and activities may be held under state auspices to focus attention on the principles of family responsibility to spouses, children and parents, as well as on the importance of the stability of marriage and the home for our future well-being; and the chief officials of local governments and the people of the state are invited either to join and participate therein or to conduct like observances in their respective localities.
History: 1973 c. 333
; 1977 c. 187
; Stats. 1977 s. 757.171; 1983 a. 192
; Stats. 1983 s. 895.22; 1987 a. 27
Fire Prevention Week. 895.225(1)
The week in October during which October 8 falls is designated Fire Prevention Week and the Saturday of the preceding week is designated Wisconsin Firefighters Memorial Day. In conjunction with the week, appropriate observances, ceremonies, exercises, and activities may be held under state auspices to do all of the following:
Commemorate 2 of the most devastating fires in U.S. history, both of which started on October 8, 1871, the Peshtigo fire and the Chicago fire.
Study fire safety tips to help avoid home fires.
Recognize that well-trained, dedicated, and well-equipped fire departments are important to all of the residents of this state.
Recognize that thousands of state firefighters, both full-time and volunteer, dedicate themselves to protecting lives and property.
Express the gratitude of the residents of this state for the valuable contributions that firefighters have made to the other residents of this state.
Honor those contributions and memorialize the firefighters of this state who have died while performing their duties.
The chief officials of local governments and the people of the state are invited either to join and participate in the observances, ceremonies, exercises, and activities under sub. (1)
that may be held under state auspices or to conduct similar observances in their respective localities.
History: 2003 a. 56
Indian Rights Day.
July 4 is designated as "Indian Rights Day," and in conjunction with the celebration of Independence Day, appropriate exercises or celebrations may be held in commemoration of the granting by congress of home rule and a bill of rights to the American Indians. When July 4 falls on Sunday, exercises or celebrations of Indian Rights Day may be held on either the third or the fifth.
History: 1977 c. 187
; Stats. 1977 s. 757.175; 1983 a. 192
; Stats. 1983 s. 895.23.
Remedies not merged.
When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.
Limitation of surety's liability.
Any person may limit the amount of liability as a surety upon any bond or other obligation required by law or ordered by any court, judge, municipal judge or public official for any purpose. The amount of the limited liability may be recited in the body of the bond or stated in the justification of the surety. In an action brought upon the bond, no judgment may be recovered against the surety for a sum larger than the amount of the liability stated, together with the proportional share of the costs of the action. In an action brought on the bond, a surety may deposit in court the amount of the liability, whereupon the surety shall be discharged and released from any further liability under the bond.
History: 1979 c. 110
s. 60 (11)
; 1985 a. 332
Renewal of sureties upon becoming insufficient and effects thereof.
If any bail bond, recognizance, undertaking or other bond or undertaking given in any civil or criminal action or proceeding, becomes at any time insufficient, the court or judge thereof, municipal judge or any magistrate before whom such action or proceeding is pending, may, upon notice, require the plaintiff or defendant to give a new bond, recognizance or undertaking. Every person becoming surety on any such new bond, recognizance or undertaking is liable from the time the original was given, the same as if he or she had been the original surety. If any person fails to comply with the order made in the case the adverse party is entitled to any order, judgment, remedy or process to which he or she would have been entitled had no bond, recognizance or undertaking been given at any time.
History: 1977 c. 305
A precondition for this section to apply is that the bond must at one time have been sufficient. Bruer v. Town of Addison, 194 Wis. 2d 617
, 534 N.W.2d 634
(Ct. App. 1995).
Justification of individual sureties. 895.345(1)
This section shall apply to any bond or undertaking in an amount of more than $1,000 whereon individuals are offered as sureties, which is authorized or required by any provision of the statutes to be given or furnished in or in connection with any civil action or proceeding in any court of record in this state, in connection with which bond or undertaking real property is offered as security.
Before any such bond or undertaking shall be approved, there shall be attached thereto and made a part of such bond or undertaking a statement under oath in duplicate by the surety that the surety is the sole owner of the property offered by the surety as security and containing the following additional information:
An accurate description by lot and block number, if part of a recorded and filed plat, or by metes and bounds of the real estate offered as security.
A statement that none of the properties offered constitute the homestead of the surety.
A statement of the total amount of the liens, unpaid taxes and other encumbrances against each property offered.
A statement as to the assessed value of each property offered, its market value and the value of the equity over and above all encumbrances, liens and unpaid taxes.
That the equity of the real property is equal to twice the penalty of the bond or undertaking.
This sworn statement shall be in addition to and notwithstanding other affidavits or statements of justification required or provided for elsewhere in the statutes in connection with such bonds and undertakings.
History: 1993 a. 486
; 1999 a. 96
This section does not apply to bonds of personal representatives. See s. 856.25
Bail, deposit in lieu of bond.
When any bond or undertaking is authorized in any civil or criminal action or proceeding, the would-be obligor may, in lieu thereof and with like legal effect, deposit with the proper court or officer cash or certified bank checks or U.S. bonds or bank certificates of deposit in an amount at least equal to the required security; and the receiver thereof shall give a receipt therefor and shall notify the payor bank of any deposits of bank certificates of deposit. Section 808.07
shall govern the procedure so far as applicable.
Sup. Ct. Order, 67 Wis. 2d 585
, 784 (1975); 1977 c. 187
This section applies to all bonds, not just bail bonds. Aiello v. Village of Pleasant Prairie, 206 Wis. 2d 67
, 556 N.W.2d 697
Expenses in actions against municipal and other officers.
Whenever in any city, town, village, school district, technical college district or county charges of any kind are filed or an action is brought against any officer thereof in the officer's official capacity, or to subject any such officer, whether or not the officer is being compensated on a salary basis, to a personal liability growing out of the performance of official duties, and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated, or in case such officer, without fault on the officer's part, is subjected to a personal liability as aforesaid, such city, town, village, school district, technical college district or county may pay all reasonable expenses which such officer necessarily expended by reason thereof. Such expenses may likewise be paid, even though decided adversely to such officer, where it appears from the certificate of the trial judge that the action involved the constitutionality of a statute, not theretofore construed, relating to the performance of the official duties of said officer.
History: 1971 c. 154
; 1993 a. 399
A county has the option to refuse payment of its sheriff's criminal defense attorney's fees. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574
, 263 N.W.2d 218
This section allows a municipality or county to pay an officer's attorney fees if it so elects. If the municipality refuses payment, the officer has no cause of action against the municipality under this section, even if the municipality had a practice of reimbursing attorney fees and costs incurred and it failed to pay because of political concerns. Murray v. City of Milwaukee, 2002 WI App 62, 252 Wis. 2d 613
, 642 N.W.2d 541
A city may reimburse a commissioner of the city redevelopment authority for his legal expenses incurred when charges are filed against him in his official capacity seeking his removal from office for cause and such charges are found by the common council to be unsupported. Such reimbursement is discretionary. The city redevelopment authority lacks statutory authority to authorize reimbursement for such legal expenses. 63 Atty. Gen. 421.
A city council can, in limited circumstances, reimburse a council member for reasonable attorney fees incurred in defending an alleged violation of the open meeting law, but cannot reimburse the member for any forfeiture imposed. 66 Atty. Gen. 226.
This section applies to criminal charges brought against a former officer for alleged fraudulent filing of expense vouchers. 71 Atty. Gen. 4
Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating open meetings law. 77 Atty. Gen. 177
Process against officer.
No process against private property shall issue in an action or upon a judgment against a public corporation or limited liability company or an officer or manager in his or her official capacity, when the liability, if any, is that of the corporation or limited liability company nor shall any person be liable as garnishee of such public corporation or limited liability company.
History: 1993 a. 112
Abrogation of defenses. 895.37(1)
In any action to recover damages for a personal injury sustained within this state by an employee while engaged in the line of the employee's duty as an employee, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:
That the employee either expressly or impliedly assumed the risk of the hazard complained of.
When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.
When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of the injured employee, where such want of ordinary care was not willful.
Any employer who has elected to pay compensation as provided in ch. 102
shall not be subject to this section.
(3) Subsection (1) (a)
shall not apply to farm labor, except such farm labor as is subject to ch. 102
No contract, rule, or regulation, shall exempt the employer from this section.
History: 1993 a. 486
The fellow servant defense is not available to a farm employer of a child employed in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194
, 255 N.W.2d 314
Abrogation of defense that contract was champertous.
No action, special proceeding, cross complaint or counterclaim in any court shall be dismissed on the ground that a party to the action is a party to a contract savoring of champerty or maintenance unless the contract is the basis of the claim pleaded.
Surety, how discharged. 895.38(1)
Any surety or the personal representative of any surety upon the bond of any trustee, guardian, receiver, executor, or other fiduciary, may be discharged from liability as provided in this section. On 5 days' notice to the principal in such bond, application may be made to the court where it is filed, or which has jurisdiction of such fiduciary or to any judge of such court for a discharge from liability as surety, and that such principal be required to account.
Notice of such application may be served personally within or without the state. If it shall satisfactorily appear to the court or the judge that personal service cannot be had with due diligence within the state, the notice may be served in such manner as the court or judge shall direct. Pending such application the principal may be restrained from acting, except to preserve the trust estate.
If at the time appointed the principal shall fail to file a new bond satisfactory to the court or judge, an order shall be made requiring the principal to file a new bond within 5 days. When such new bond shall be filed, the court or judge shall make an order requiring the principal to account for all of the principal's acts to and including the date of the order, and to file such account within a time fixed not exceeding 20 days; and shall discharge the surety making such application from liability for any act or default of the principal subsequent to the date of such order.
If the principal shall fail to file a new bond within the time specified, an order shall be made removing the principal from office, and requiring the principal to file the principal's account within 20 days. If the principal shall fail to file the principal's account as required, the surety may make and file such account; and upon settlement thereof and upon the trust fund or estate being found or made good and paid over or properly secured, credit shall be given for all commissions, costs, disbursements and allowances to which the principal would be entitled were the principal accounting.
The procedure for hearing, settling, and allowing the principal's account shall be according to the practice prescribed by ch. 862
for personal representatives. Upon the trust fund or estate being found or made good and paid over or properly secured, the surety shall be discharged from all liability. Upon demand by the principal, the discharged surety shall return the unearned part of the premium paid for the canceled bond.
Any such fiduciary may institute and conduct proceedings for the discharge of the fiduciary's surety and for the filing of a new bond; and the procedure shall in all respects conform substantially to the practice prescribed by this section in cases where the proceeding is instituted by a surety, and with like effect.
History: 1993 a. 486
; 2001 a. 102
Employee's cash bonds to be held in trust; duty of employer; penalty. 895.41(1)
Where any person requests any employee to furnish a cash bond, the cash constituting such bond shall not be mingled with the moneys or assets of such person demanding the same, but shall be deposited by such person in a bank, trust company, savings bank or savings and loan association doing business in this state whose deposits or shares are insured by a federal agency to the extent of $10,000, as a separate trust fund, and it shall be unlawful for any person to mingle such cash received as a bond with the moneys or assets of any such person, or to use the same. No employer shall deposit more than $10,000 with any one depository. The bank book, certificate of deposit or other evidence thereof shall be in the name of the employer in trust for the named employee, and shall not be withdrawn except after an accounting had between the employer and employee, said accounting to be had within 10 days from the time relationship is discontinued or the bond is sought to be appropriated by the employer. All interest or dividends earned by such sum deposited shall accrue to and belong to the employee and shall be turned over to said employee as soon as paid out by the depository. Such deposit shall at no time and in no event be subject to withdrawal except upon the signature of both the employer and employee or upon a judgment or order of a court of record.
In the event of the failure of any person, such moneys on deposit shall constitute a trust fund for the benefit of the persons who furnished such bonds and shall not become the property of the assignee, receiver or trustee of such insolvent person.
In case an employee who was required to give a cash bond dies before the cash bond is withdrawn in the manner provided in sub. (1)
, the accounting and withdrawal may be effected not less than 5 days after the employee's death and before the filing of a petition for letters testamentary or other letters authorizing the administration of the decedent's estate, by the employer with any of the following, in the following order:
The decedent's children if the decedent shall leave no surviving spouse.
The decedent's father or mother if the decedent shall leave no surviving spouse or children.
The decedent's brother or sister if the decedent shall leave no surviving spouse, children or parent.
The accounting and withdrawal under par. (a)
shall be effected in the same manner and with like effect as if such accounting and withdrawal were accomplished by and between the employer and employee as provided in sub. (1)
The amount of the cash bond, together with principal and interest, to which the deceased employee would have been entitled had the deceased employee lived, shall, as soon as paid out by the depository, be turned over to the relative of the deceased employee effecting the accounting and withdrawal with the employer. The turning over shall be a discharge and release of the employer to the amount of the payment.
If no relatives designated under par. (a)
survive, the employer may apply the cash bond, or so much of the cash bond as may be necessary, to paying creditors of the decedent in the order of preference prescribed in s. 859.25
for satisfaction of debts by personal representatives. The making of payment under this paragraph shall be a discharge and release of the employer to the amount of the payment.
Any person who violates this section shall be punished by a fine equal to the amount of the bond or by imprisonment for not less than 10 days nor more than 60 days, or both.
Deposit of undistributed money and property by administrators and others.