In counties in which a circuit court commissioner is assigned to assist in small claims matters, except in eviction actions which shall be governed by par. (a)
, demand for trial by jury shall be made at the time a demand for trial is filed. If the party requesting a trial does not request a jury trial, any other party may request a jury trial by filing the request with the court and mailing copies to all other parties within 15 days from the date of mailing of the demand for trial or the date on which personal notice of demand is given, whichever is applicable. If no party demands a trial by jury, the right to trial by jury is waived forever. The fees prescribed in ss. 814.61 (4)
and 814.62 (3) (e)
shall be paid when the demand for a trial by jury is filed.
(4) Jury procedure.
If there is a demand for a trial by jury, the judge or circuit court commissioner shall place the case on the trial calendar and a jury of 6 persons shall be chosen as provided in s. 345.43 (3) (b)
. The parties shall proceed as if the action had originally been begun as a proceeding under chs. 801
, except that the court is not required to provide the jury with one complete set of written instructions under s. 805.13 (4)
and the requirements for appearance by the parties shall be governed by s. 799.06 (2)
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1977 c. 345
; 1979 c. 32
; 1979 c. 128
; Stats. 1979 s. 799.21; 1981 c. 317
; 1987 a. 208
; 2001 a. 61
Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466
, 312 N.W.2d 731
applies to actions relating to the confirmation, vacation, modification or correction of an arbitration award.
History: 1991 a. 163
Trial by court, findings and judgment.
Upon a trial of an issue of fact by the court, its decision shall be given either orally immediately following trial or in writing and filed with the clerk within 60 days after submission of the cause, and shall state separately the facts found and the conclusions of law thereon; and judgment shall be entered accordingly.
History: 1979 c. 32
; Stats. 1979 s. 799.215.
Judgment on failure to appear or answer. 799.22(1)(1)
When plaintiff fails to appear.
If the plaintiff fails to appear on the return date or on the date set for trial, the court may enter a judgment for the defendant dismissing the action, on motion of the defendant or on its own motion.
(2) When defendant fails to appear.
If the defendant fails to appear on the return date or on the date set for trial, the court may enter a judgment upon due proof of facts which show the plaintiff entitled thereto.
(3) Plaintiff's proof where action arose on contract for recovery of money.
In any action arising on contract for the recovery of money only, if the defendant fails to appear and answer or to appear at the time set for trial, the plaintiff may file with the judge or clerk a verified complaint, or an affidavit of the facts, or may offer sworn testimony or other evidence to the clerk or judge, and either may enter judgment thereon.
(4) Pleading in lieu of appearance. 799.22(4)(a)(a)
Any circuit court may by rule permit a defendant to join issue in any of the actions specified in s. 799.01
without appearing on the return date by answering, either by mail or by telephone, within such time and in such manner as the rule permits.
If the defendant is a nonresident of this state, the circuit court shall adopt a rule to permit the defendant to join issue in any of the actions specified in s. 799.01
without appearing on the return date by answering by mail, in such manner as the rule permits, and if the court adopts a rule under par. (a)
to permit the defendant to join issue without appearing on the return date by answering by telephone, then the defendant shall also be permitted to join issue by answering by telephone, in such manner as the rule permits.
If a court adopts a rule under par. (a)
, then all of the following apply:
The existence of the rule shall be deemed an appearance by the plaintiff in that court on the return date for purposes of sub. (1)
A proper answer by the defendant under the rule shall be deemed an appearance by the defendant in that court on the return date for purposes of sub. (2)
Any summons under s. 799.05 (6)
or 799.12 (6) (c)
and any notice under s. 799.16 (4)
shall notify the defendant of the option to answer without appearing in court on the return date and the methods of answering permitted by the rule.
History: 1979 c. 32
; Stats. 1979 s. 799.22; 1987 a. 208
; 1989 a. 56
Dismissal of pending actions.
The court may without notice dismiss any action or proceeding, in which issue has not been joined, which is not otherwise disposed by judgment or stipulation and order within 6 months from the original return date.
History: 1979 c. 32
; Stats. 1979 s. 799.225.
Entry of judgment or order; notice of entry thereof.
When a judgment or an order is rendered, the judge, circuit court commissioner or clerk of circuit court shall immediately enter it in the court record and note the date thereof which shall be the date of entry of judgment or order. The clerk of circuit court, except in municipal and county forfeiture actions, shall mail a notice of entry of judgment to the parties or their attorneys at their last-known address within 5 days of its entry. Upon payment of the exact amount of the fee prescribed in s. 814.62 (3) (c)
, the clerk of circuit court shall enter the judgment in the judgment and lien docket.
(2) Applicability of s. 806.15.
shall apply with respect to judgments entered in the judgment and lien docket.
(3) Stipulated dismissal.
Prior to the entry of judgment, upon stipulation of the parties to a schedule for compliance with the stipulation, the court or circuit court commissioner may enter a stipulated judgment of dismissal in lieu thereof. Any such judgment may be vacated without notice to the obligated party, and the unsatisfied portion thereof entered, upon application by the prevailing party and proof by affidavit of noncompliance with the terms of the stipulation.
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1977 c. 345
; 1979 c. 32
; Stats. 1979 s. 799.24; 1981 c. 317
; 1983 a. 302
; 1987 a. 208
; 1995 a. 224
; 1997 a. 27
; 2001 a. 61
When written notice of entry of judgment showed an incorrect date of entry, the time to appeal under s. 808.04 (1) was not shortened to 45 days. Mock v. Czemierys, 113 Wis. 2d 207
, 336 N.W.2d 188
(Ct. App. 1983).
A judgment for payment of a forfeiture can be docketed, accumulates interest at 12 percent, and may be enforced through collection remedies available in other civil proceedings. OAG 2-95
The clerk shall without notice to the parties tax and insert in the judgment as costs in favor of the party recovering judgment the following:
(5) Garnishee fee.
Any garnishee fee paid.
(6) Service fees and other charges.
Lawful fees or charges paid to the sheriff, constable or other person for serving the summons or any other document, and charges paid to the sheriff in connection with the execution of any writ of restitution.
(7) Witness fees.
Amounts necessarily paid out for witness fees, including travel, as prescribed in s. 814.67
. The fees for witnesses and their travel shall not exceed 50 percent of the amount recovered unless an order is entered specifying the amount to be paid in excess of 50 percent and the reasons therefor.
Attorney fees as provided in s. 814.04 (1)
, except if the amount of attorney fees is otherwise specified by statute.
In an action of replevin and attachment the value of the property recovered shall govern the amount of the attorney fees taxable. In an action of eviction the attorney fees taxable shall be $10 plus such sum as is taxable under par. (a)
on account of the recovery of damages.
If judgment is for the defendant, the amount claimed in the complaint, the value of the property sought to be recovered or the amount recovered on the defendant's counterclaim, in the court's discretion, shall govern the amount of the attorney fees that the defendant shall recover, and the defendant is not entitled to recover for cost items the defendant has not advanced.
No attorney fees may be taxed in behalf of any party unless the party appears by an attorney other than himself or herself.
(11) Additional costs.
Additional costs as may be allowed to a municipality under s. 814.63 (2)
(12) Security for costs.
When security for costs shall be ordered pursuant to s. 814.28
, the maximum amount allowed shall be $50.
(13) Additional costs and disbursements.
The court may permit additional costs and disbursements to be taxed pursuant to ch. 814
History: 1971 c. 32
; Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1977 c. 187
; 1979 c. 32
, 92 (16)
; 1979 c. 176
; Stats. 1979 s. 799.25; 1981 c. 317
; 1981 c. 365
; 1987 a. 208
; 1989 a. 359
; 1993 a. 490
A court commissioner lacked jurisdiction over a counterclaim alleging a frivolous action, and the commissioner's order finding the claim not frivolous was void. Hessenius v. Schmidt, 102 Wis. 2d 697
, 307 N.W.2d 232
Small claims fees.
In actions under this chapter, the clerk shall collect the fees prescribed in s. 814.62
History: 1981 c. 317
Money damages; disclosure of assets requested. 799.26(1)(1)
When a judgment for money damages is entered under this chapter, the court or circuit court commissioner shall order the judgment debtor to execute under penalty of contempt a disclosure statement and to mail or deliver that statement to the judgment creditor or to the clerk of circuit court in the county where the judgment is entered within 15 days of entry of judgment unless the judgment is sooner satisfied. The statement shall disclose, as of the date of judgment, the debtor's name, residence address, employers and their addresses, any real property interests owned by the debtor, cash on hand, financial institutions in which the judgment debtor has funds on deposit, whether the debtor's earnings are totally exempt from garnishment under s. 812.34 (2) (b)
, and such other information as required by the schedules adopted under sub. (3)
If the judgment debtor complies with sub. (1)
by mailing or delivering the disclosure statement to the clerk of circuit court, the judgment debtor shall mail or deliver a copy of that disclosure statement to the judgment creditor.
Failure to comply with an order under sub. (1)
is punishable by a remedial sanction under ch. 785
. Execution of a disclosure statement and delivery of the disclosure statement to the clerk of circuit court or sheriff upon service of a motion for contempt is compliance with the order.
The judicial conference shall adopt standard schedules for the disclosure required by sub. (1)
, which shall inform judgment debtors of the requirements of this section, the sanctions for nondisclosure or fraudulent misrepresentation, a general description of garnishment and execution, and information about the types of assets and income which are exempt from the claims of creditors. The judicial conference shall also adopt a standard form pleading invoking the contempt powers of the court under sub. (2)
, copies of which may be obtained by judgment creditors without charge from the clerk.
Except in eviction actions, a party who appears on the return date shall be given, on request, an adjournment of at least 7 days, or such longer period as the court grants. In eviction actions, no adjournments shall be granted except for cause shown under sub. (2)
, unless with the consent of the plaintiff.
(2) For cause.
For good cause shown to the court by either party, the court may extend the time within which any act may be done, except the time for the taking of an appeal.
(3) Same; terms.
No continuance under sub. (2)
shall be granted, unless by consent of the parties, except upon such terms as the court deems just.
History: 1979 c. 32
; Stats. 1979 s. 799.27.
Motions for new trial.
Motions for new trial in the trial court are governed by s. 805.15
. A motion for a new trial must be made and heard within 20 days after the verdict is rendered, unless the court extends the time as provided in s. 801.15 (2) (b)
. If the motion is not decided within 10 days of the date of hearing, it shall be deemed denied. The entry of judgment by the court without deciding a pending motion for a new trial shall be deemed a denial of the motion.
(2) Newly discovered evidence.
A motion to set aside a verdict or to open up a judgment and for a new trial founded upon newly discovered evidence may be heard upon affidavits and the proceedings in the action. Such a motion may be made at any time within one year from the verdict or finding. The order granting or denying the motion shall be in writing and shall specify the grounds for granting the new trial, or state the court's reasons for denying it.
Sup. Ct. Order, 67 Wis. 2d 585, 765 (1975); 1979 c. 32
; Stats. 1979 s. 799.28.
Default judgments. 799.29(1)(a)(a)
There shall be no appeal from default judgments, but the trial court may, by order, reopen default judgments upon notice and motion or petition duly made and good cause shown.
In ordinance violation cases, the notice of motion must be made within 20 days after entry of judgment. In ordinance violation cases, default judgments for purposes of this section include pleas of guilty, no contest and forfeitures of deposit.
In other actions under this chapter, the notice of motion must be made within 12 months after entry of judgment unless venue was improper under s. 799.11
. The court shall order the reopening of a default judgment in an action where venue was improper upon motion or petition duly made within one year after the entry of judgment.
The court, judge or municipal judge having trial jurisdiction to recover a forfeiture may, with or without notice, for good cause shown by affidavit and upon just terms, within 30 days after the stipulation has been entered into, relieve any person from the stipulation or any order, judgment or conviction entered or made thereon. Where the stipulation was made without appearance in or having been filed in court, the court, judge or municipal judge may order a written complaint to be filed and set the matter for trial. The stipulation or a copy shall, in such cases, be filed with the court, judge or municipal judge and costs and fees shall be taxed as provided by law.
Judicial Council Note, 1983: Sub. (1) (c) liberalizes the time limit for reopening default judgments entered in improperly venued actions. This remedy supplements the court's authority under s. 799.11 (3) to correct venue on its own motion. [Bill 324-S]
Sub. (1) provides the exclusive procedure for reopening a default judgment in small claims proceedings. King v. Moore, 95 Wis. 2d 686
, 291 N.W.2d 304
(Ct. App. 1980).
An appeal of a judgment or order under this chapter shall be to the court of appeals.
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1975 c. 218
; 1977 c. 187
; 1979 c. 32
; Stats. 1979 s. 799.30.
Eviction actions. 799.40(1)(1)
A civil action of eviction may be commenced by a person entitled to the possession of real property, or by that person's agent authorized in writing, to remove therefrom any person who is not entitled to either the possession or occupancy of such real property.
(1g) Notice terminating tenancy.
If a landlord gives a notice terminating tenancy under s. 704.16
, or 704.19
through certified mail in accordance with s. 704.21 (1) (d)
, proof of certified mailing from the United States post office shall be sufficient to establish that proper notice has been provided for the purpose of filing a complaint or otherwise demonstrating that proper notice has been given in an eviction action, and an affidavit of service may not be requested to establish that proper notice has been provided.
(1m) Acceptance of rent or other payment.
If a landlord commences an action under this section against a tenant whose tenancy has been terminated for failure to pay rent or for any other reason, the action under this section may not be dismissed because the landlord accepts past due rent or any other payment from the tenant after serving notice of default or after commencing the action.
(1s) No waiver by landlord or tenant.
It shall not be a defense to an action of eviction or a claim for damages that the landlord or tenant has previously waived any violation or breach of any of the terms of the rental agreement including, but not limited to, the acceptance of rent or that a custom or practice occurred or developed between the parties in connection with the rental agreement so as to waive or lessen the right of the landlord or tenant to insist upon strict performance of the terms of the rental agreement.
(2) Joinder of other claims.
The plaintiff may join with the claim for restitution of the premises any other claim against the defendant arising out of the defendant's possession or occupancy of the premises.
The court shall stay the proceedings in a civil action of eviction if the tenant applies for emergency assistance under s. 49.138
, except that no stay may be granted under this paragraph after a writ of restitution has been issued in the proceedings. If a stay is granted, the tenant shall inform the court of the outcome of the determination of eligibility for emergency assistance. The stay remains in effect until the tenant's eligibility for emergency assistance is determined and, if the tenant is determined to be eligible, until the tenant receives the emergency assistance, except that the stay may not remain in effect for more than 10 working days, as defined in s. 227.01 (14)
The court shall stay the proceedings in a civil action of eviction against a foreclosed homeowner, as defined in s. 846.40 (1) (b)
, under the circumstances and as provided in s. 846.40 (9)
Any act of the landlord that renders the premises unfit for occupancy relieves the tenant from the obligation of paying rent. Constructive eviction can only take place when the tenant abandons the premises within a reasonable time after a substantial breach of the lease. First Wisconsin Trust Co. v. L. Wiemann Co. 93 Wis. 2d 258
, 286 N.W.2d 360
Implicit in the sub. (4) mandate that a stay is required until the tenant receives the emergency assistance is a requirement that the tenant seek and find suitable permanent housing within a reasonable period of time and that the stay will remain in effect for only a reasonable period of time as determined by the judge under the circumstances in each individual case. McQuestion v. Crawford, 2009 WI App 35
, 316 Wis. 2d 494
, 765 N.W.2d 822
Eviction practice in Wisconsin. Boden. 54 MLR 298.
Burden of proof required to establish defense of retaliatory eviction. 1971 WLR 939.