(1m) Interlocutory adjudication.
After the issuance of the order to show cause under sub. (1)
, the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3)
, but only until such final judgment is made or until further order of the court.
(2) Right to defend; jury trial.
Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.
If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.
(4) Speedy hearing; rules of evidence.
If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3)
. If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901
, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.
(5) Findings and judgment.
If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808
by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.
(6) Admissibility in criminal prosecutions.
In any trial for a violation of s. 944.21
, the proceeding under this section and the final judgment of the circuit court under sub. (3)
or the interlocutory adjudication under sub. (1m)
, shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant's knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.
Sup. Ct. Order, 67 Wis. 2d 585
, 721 (1975); 1975 c. 218
; 1977 c. 187
The provision of sub. (1m) that permit an interlocutory judgment prior to an adversary adjudication and of sub. (6) that permits admission of the interlocutory judgment in evidence in a criminal trial are unconstitutional. State v. I, A Woman — Part II, 53 Wis. 2d 102
, 191 N.W.2d 897
The notice procedures under sub. (1) meet due process requirements. State v. Erotomic, 87 Wis. 2d 536
, 275 N.W.2d 160
(Ct. App. 1979).
Rendition, perfection and entry of judgment. 806.06(1)(a)(a)
A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge's written direction.
A judgment is entered when it is filed in the office of the clerk of court.
A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment.
A judgment is granted when given orally in open court on the record.
The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition.
After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry.
A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs. If proceedings are stayed under s. 806.08
, judgment may be perfected at any time within 30 days after the expiration of the stay. If the parties agree to settle all issues but fail to file a notice of dismissal, the judge may direct the clerk to draft an order dismissing the action. No execution shall issue until the judgment is perfected or until the expiration of the time for perfection, unless the party seeking execution shall file a written waiver of entitlement to costs.
Notice of entry of judgment or order must be given within 21 days after the entry of judgment or order to constitute notice under s. 808.04 (1)
Sup. Ct. Order, 67 Wis. 2d 585
, 724 (1975); 1975 c. 218
; Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981).
Judicial Council Committee's Note, 1979: Sub. (5) is amended by adding a reference to the entry of an order so as to conform with 808.04 (1), which establishes appeal time periods from the entry of a judgment "or" order. [Re Order effective Jan. 1, 1980]
Judicial Council Committee's Note, 1981: Subs. (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry. [Re Order effective Jan. 1, 1982]
Notice of entry of judgment was "given" within meaning of sub. (5) when it was mailed. Section 801.15 (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742
, 295 N.W.2d 11
(Ct. App. 1980).
The last document in litigation should indicate on its face that for purposes of appeal it is a final order or judgment and that no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc. 109 Wis. 2d 490
, 326 N.W.2d 240
Under s. 808.04 (1), notice of entry of judgment must be given within 21 days of the entry of judgment, not of signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises, 161 Wis. 2d 706
, 468 N.W.2d 741
(Ct. App. 1991).
Sub. (4) governs the timeliness of an application for attorney fees in a federal civil rights action. Hartman v. Winnebago County, 216 Wis. 2d 419
, 574 N.W.2d 222
No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244
, 618 N.W.2d 857
An action to enforce a contractual agreement to pay attorney fees in the event of a suit between the parties to the contract was subject to the time limit under sub. (4). Purdy v. Cap Gemini America, Inc. 2001 WI App 270, 248 Wis. 2d 804
, 637 N.W.2d 763
Sub. (4) governs time limits when a judgment has been rendered. An order for consolidation is not a judgment and cannot trigger the time limits under sub. (4). Forman v. McPherson, 2004 WI App 145, 275 Wis. 2d 604
, 685 N.W.2d 603
Relief from judgment or order. 806.07(1)
On motion and upon such terms as are just, the court, subject to subs. (2)
, may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
Mistake, inadvertence, surprise, or excusable neglect;
Fraud, misrepresentation, or other misconduct of an adverse party;
The judgment has been satisfied, released or discharged;
A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
It is no longer equitable that the judgment should have prospective application; or
Any other reasons justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and, if based on sub. (1) (a)
, not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b)
shall be made within the time provided in s. 805.16
. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.
A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under s. 48.91 (3)
granting adoption of a child. A petition for termination of parental rights under s. 48.42
and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.
Sup. Ct. Order, 67 Wis. 2d 585
, 726 (1975); 1975 c. 218
; 1997 a. 114
There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian, 79 Wis. 2d 374
, 255 N.W.2d 564
A lawyer's failure to answer a complaint due to misplacing a client's papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske, 80 Wis. 2d 64
, 257 N.W.2d 865
The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to plaintiff's counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan, 81 Wis. 2d 463
, 260 N.W.2d 700
Section 805.17 (3) does not limit a trial court's discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith, 82 Wis. 2d 667
, 264 N.W.2d 239
A motion filed over 6 months after the entry of judgment was not filed within a "reasonable time" under sub. (2). Rhodes v. Terry, 91 Wis. 2d 165
, 280 N.W.2d 248
A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462
, 283 N.W.2d 603
(Ct. App. 1979).
Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 Wis. 2d 407
, 284 N.W.2d 674
Neglect by both a lawyer and client was not "excusable." Charolais Breeding Ranches v. Wiegel, 92 Wis. 2d 498
, 285 N.W.2d 720
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Association v. Barkwood Landscaping Co., Inc. 93 Wis. 2d 190
, 286 N.W.2d 581
Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council, 102 Wis. 2d 521
, 307 N.W.2d 322
(Ct. App. 1981).
A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. Wisconsin Public Service Corporation v. Krist, 104 Wis. 2d 381
, 311 N.W.2d 624
New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R. A. S. v. J. M. 114 Wis. 2d 305
, 338 N.W.2d 851
(Ct. App. 1983).
Sub. (1) (h) allows relief even if the claim sounds in par. (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H. 122 Wis. 2d 536
, 363 N.W.2d 419
The "reasonable time" requirement of sub. (2) does not apply to void judgments. Neyland v. Vorwald, 124 Wis. 2d 85
, 368 N.W.2d 648
An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc. 145 Wis. 2d 66
, 426 N.W.2d 41
(Ct. App. 1988).
An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc. 145 Wis. 2d 66
, 426 N.W.2d 41
(Ct. App. 1988).
A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau, 146 Wis. 2d 101
, 430 N.W.2d 579
(Ct. App. 1988).
A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson, 157 Wis. 2d 490
, 460 N.W.2d 166
(Ct. App. 1990).
A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under sub. (1) (h). Schwochert v. American Family Ins. Co. 166 Wis. 2d 97
, 479 N.W.2d 190
(Ct. App. 1991). See also Schwochert v. American Family Insurance Co. 172 Wis. 2d 628
, 494 N.W.2d 201
A property division may be modified under s. 806.07, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 Wis. 2d 285
, 493 N.W.2d 737
(Ct. App. 1992).
A "reasonable time" to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C. 181 Wis. 2d 618
, 511 N.W.2d 868
(Ct. App. 1994).
A bank that failed to file an answer due to mislaying papers was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 Wis. 2d 321
, 525 N.W.2d 271
(Ct. App. 1994).
In determining whether to overturn a default judgment the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 Wis. 2d 321
, 525 N.W.2d 271
(Ct. App. 1994).
A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliot, 190 Wis. 2d 816
, 528 N.W.2d 17
(Ct. App. 1995).
Case law is not a "prior judgment" under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis. 2d 62
, 533 N.W.2d 470
The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Manufacturing, Inc. v. Midland Machinery, 205 Wis. 2d 650
, 556 N.W.2d 437
(Ct. App. 1996), 95-3266
An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin, 209 Wis. 2d 72
, 561 N.W.2d 810
(Ct. App. 1997), 96-0827
When the record demonstrates the circuit court's intention to send notice of an order, but it failed to do so and acknowledged the mistake, the court could effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp. 210 Wis. 2d 638
, 563 N.W.2d 519
To obtain relief under sub. (2) from a judgment obtained as the result of fraud on a court, the complaining party must have responded without inexcusable neglect, which includes unexplained delay in responding to the original action. Dekker v. Wergin, 214 Wis. 2d 17
, 570 N.W.2d 861
(Ct. App. 1997), 96-3258
To vacate a default judgment under sub. (1) (a), the moving party must set forth a meritorious defense, which is a defense good at law that would survive a motion for judgment on the pleadings. J.L. Phillips & Associates v. E&H Plastic Corp. 217 Wis. 2d 348
, 577 N.W.2d 13
It was error to define inadvertence under sub. (1) (a) so that virtually any failure on the part of an attorney to predict and appreciate the potential collateral legal consequences of his her own proposed settlement language would have been at least in part from inadvertence. Milwaukee Women's Medical Service, Inc. v. Scheidler, 228 Wis. 2d 514
, 598 N.W.2d 588
(Ct. App. 1999), 98-1139
A circuit court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of 806.07 (1) to apply, the court must find that the party opposing the default judgment must have a meritorious defense to the underlying action. Shirk v. Bowling, Inc. 2001 WI 36, 242 Wis. 2d 153
, 624 N.W.2d 375
The existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. A contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. State v. Williams, 2001 WI App 155, 246 Wis. 2d 722
, 631 N.W.2d 623
Orders and judgments subject to this section encompass all the findings of fact and conclusions of law the court makes in arriving at the order or judgment. Estate of Persha, 2002 WI App 113, 255 Wis. 2d 767
, 649 N.W.2d 661
A court may act on its own motion under this section. When it does so, the parties must have notice and the opportunity to be heard. Gittel v. Abram, 2002 WI App 113, 255 Wis. 2d 767
, 649 N.W.2d 661
. See also Larry v. Harris, 2008 WI 81, ___ Wis. 2d ___, 752 N.W.2d 279
A circuit court may properly invoke this section to open the property division provisions of a divorce judgment incorporating a confirmed arbitrated award. Franke v. Franke, 2004 WI 8, 268 Wis. 2d 360
, 674 N.W.2d 832
The competing interests of finality and fairness coalesce when considering sub. (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J. 2004 WI App 58, 271 Wis. 2d 242
, 677 N.W.2d 684
Lack of competency is not jurisdictional and does not result in a void judgment. Accordingly, it is not true that a motion for relief from judgment grounds of lack of circuit court competency may be made at any time. If a judgment is entered by a circuit court lacking competency and a competency challenge has been waived, sub. (1) (h) may provide an avenue for relief in an extraordinary case. Village of Trempealeau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76
, 681 N.W.2d 190
In determining whether the party seeking relief from a default judgment has proven excusable neglect, the court should consider whether the moving party has acted promptly to remedy the default judgment, whether the default judgment imposes excessive damages, and whether vacatur of the judgment is necessary to prevent a miscarriage of justice. The court must also consider that the law favors the finality of judgments, and the reluctance to excuse neglect when too easy a standard for the vacatur of default judgments would reduce deterrence to litigation-delay. Mohns, Inc. v. TCF National Bank, 2006 WI App 65, 292 Wis. 2d 243
, 714 N.W.2d 245
The burden of proof is on the party seeking to set aside or vacate a default judgment when the question of proper service is involved. The evidence necessary to set aside the judgment is evidence sufficient to allow a reviewing court to determine that the circuit court's findings of fact were contrary to the great weight and clear preponderance of the credible evidence. Richards v. First Union Securities, Inc. 2006 WI 55, 290 Wis. 2d 620
, 714 N.W.2d 913
The discretionary authority afforded the circuit courts by sub. (1) (h) to vacate final judgments is to be used sparingly. The court should consider several factors, including whether: 1) the judgment was the result of the conscientious, deliberate, well-informed choice of the claimant; 2) the claimant received the effective assistance of counsel; 3) relief is sought from a judgment to which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; 4) there is a meritorious defense to the claim; and 5) there are intervening circumstances making it inequitable to grant relief. Allstate Insurance v. Brunswick Corporation, 2007 WI App 221, 305 Wis. 2d 400
, 740 N.W.2d 888
The vigor with which the supreme court denounces a previous decision is not a crucial consideration and itself does not demonstrates unique and extraordinary circumstances under sub. (1) (h). While a circuit court should consider factors bearing upon the equities of the case, the mind set of the supreme court is not such a factor. Allstate Insurance v. Brunswick Corporation, 2007 WI App 221, 305 Wis. 2d 400
, 740 N.W.2d 888
Stay of proceedings to enforce a judgment. 806.08(1)(1)
Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Subsection (3)
governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial, or to alter or amend a judgment, or of a motion for relief from a judgment or order.
When an appeal is taken from an interlocutory or final judgment or appealable order granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.