Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.02; 1993 a. 486
No provision in ch. 815 or case law prevents a land contract vendor from filing a strict foreclosure action or obtaining a judgment of strict foreclosure because a judgment lienholder has already filed an action for foreclosure of a judgment lien and sale of the property nor is their authority that suggests a circuit court has discretion to dismiss a strict foreclosure action for that reason. The land contract vendor may choose the remedy it wishes to pursue including strict foreclosure. Republic Bank of Chicago v. Lichosyt, 2007 WI App 150
, 303 Wis. 2d 474
, 736 N.W.2d 153
There are 3 kinds of executions: one against the property of the judgment debtor, another against the judgment debtor's person, and the 3rd for the delivery of property, or such delivery with damages for withholding the same. They are the process of the court, and shall be as prescribed by s. 815.05
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.03; 1993 a. 486
Execution, when issued. 815.04(1)(a)
Upon any judgment of a court of record perfected as specified in s. 806.06
or any judgment of any other court entered in the judgment and lien docket of a court of record, execution may issue at any time within 5 years after the rendition of the judgment. When an execution has been issued and returned unsatisfied in whole or in part other executions may issue at any time upon application of the judgment creditor.
If no execution on a judgment as described in par. (a)
is issued within 5 years after the rendition of the judgment, or, if application is made by one other than the judgment creditor, execution may be issued only upon leave of the court, in its discretion, upon prior notice to the judgment debtor, served as a summons is served in a court of record. If the judgment debtor is absent or a nonresident, service of the notice may be by a class 3 notice, under ch. 985
, or in any other manner that the court directs. Application shall be by the petition of the judgment creditor or of the assignee, setting forth that the judgment or a portion of the judgment remains unpaid, and that the petitioner is the bona fide owner of the judgment, for value.
No executions shall issue or any proceedings be commenced upon any judgment after 20 years from the rendition of the judgment.
When the sheriff holds an execution against property any person indebted to the judgment debtor may pay to the sheriff the amount of the indebted person's debt not exempt from execution or so much thereof as shall be necessary to satisfy the execution, and the sheriff's receipt shall be a sufficient discharge for the amount so paid.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.04; 1993 a. 486
; 1995 a. 224
Execution, how issued; contents. 815.05(1g)(a)
The execution shall be issued from and sealed with the seal of the court and signed by the clerk of circuit court where the judgment, a certified copy of the judgment, or the transcript of the municipal judge's judgment is filed. The execution shall be directed to the sheriff or, except as provided for in par. (b)
, to the coroner if the sheriff is a party or interested, and countersigned by the judgment owner or the owner's attorney. The execution shall intelligibly refer to the judgment, stating all of the following:
The county where the judgment or a certified copy of the judgment or the transcript is filed.
The time of entry in the judgment and lien docket in the county to which the execution is issued.
Whenever a judgment is recovered in any court of record against the sheriff, the execution thereon may be directed and delivered to any person, except a party in interest, designated by order of the court who shall perform the duties of a sheriff and be liable in all respects to all the provisions of law respecting sheriffs to the extent that those laws are applicable.
If the execution is against the property of the judgment debtor, the execution shall require the officer to whom it is directed to satisfy the judgment out of the personal property of the debtor, and if sufficient personal property cannot be found, out of the real property belonging to the judgment debtor on the day when the judgment was entered in the judgment and lien docket in the county or at any time thereafter.
If real estate has been attached and judgment rendered for the plaintiff, the execution may also direct a sale of the interest that the defendant had in the attached real estate at the time it was attached or at any time thereafter.
If the execution is upon a judgment to enforce a lien upon specific property, the execution shall require the officer to whom it is directed to sell the interest that the defendant had in that specific property at the time that the lien attached.
If the execution is against property in the hands of personal representatives, heirs, devisees, legatees, tenants of real property or trustees, the execution shall require the officer to whom it is directed to satisfy the judgment out of that property.
If the execution is against the person of the judgment debtor, the execution shall require the officer to whom it is directed to arrest the judgment debtor and commit the judgment debtor to the county jail until the judgment debtor pays the judgment or is discharged according to law.
If the execution is for the delivery of property, the execution shall require the officer to whom it is directed to deliver the possession of the property, particularly describing the property, to the party entitled to the property, and may require the officer to satisfy any costs, damages or rents and profits covered by the judgment out of the personal property of the party against whom the judgment was rendered, and shall specify the value of the property for which the judgment was recovered. If delivery of the property is not possible and if sufficient personal property cannot be found, the officer may satisfy the judgment out of the real property belonging to the person against whom the execution was rendered on the day when the judgment was entered in the judgment and lien docket or at any time thereafter.
If a judgment in replevin is entered against the principal and also against the principal's sureties under s. 810.15
, the execution shall direct that the property of the surety shall not be levied on unless the property found, belonging to the principal, is not sufficient to satisfy the judgment.
If the judgment is not all due, the execution may issue for the collection of any installments that have become due, and shall direct the sheriff to collect the amount then due, with interest and costs, stating the amount of each. The judgment shall remain as security for the installments thereafter to become due, and whenever any further installments become due, execution may in like manner be issued for their collection.
Except as provided in s. 807.01 (4)
, every execution upon a judgment for the recovery of money shall direct the collection of interest at an annual rate equal to 1 percent plus the prime rate in effect on January 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of that year, as reported by the federal reserve board in federal reserve statistical release H. 15, on the amount recovered from the date of the entry of the judgment until it is paid.
History: 1971 c. 141
; Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.05; 1977 c. 305
; 1979 c. 110
s. 60 (13)
; 1979 c. 271
; 1993 a. 486
; 1995 a. 224
; 1999 a. 85
; 1999 a. 186
; 2011 a. 69
The law by which the debtor may be discharged from jail is in ch. 898
See s. 59.32 (2) for a provision that a sheriff is to collect fees on execution in the same manner as the sum collected under the writ.
When a transcript of a judgment docket is filed in another county, the court of that county has no jurisdiction to issue an execution. An execution may issue only from the court of entry. Wilson v. Craite, 60 Wis. 2d 350
, 210 N.W.2d 700
The rate of interest provided by a foreign judgment docketed in Wisconsin controls, not the s. 815.05 (8) rate. Professional Office Buildings, Inc. v. Royal Indemnity Co. 145 Wis. 2d 573
, 427 N.W.2d 427
(Ct. App. 1988).
Sub. (8) establishes the interest rate for every judgment for which the legislature has not explicitly established a different rate. Burlington Northern Railroad Co. v. Superior, 159 Wis. 2d 434
, 464 N.W.2d 643
Interest accrues under sub. (8) at the stated rate only until paid, including payment to the court. The trial court did not abuse its discretion in staying execution and ordering the judgment amount paid into the court pending appeal. Management Computer v. Hawkins, Ash, Baptie & Co. 224 Wis. 2d 312
, 592 N.W.2d 279
(Ct. App. 1998), 97-2470
How to Collect on a Judgment After the Demise of the Creditor's Lien. Stelljes. Wis. Law. July/Aug. 2016.
Execution, when returnable.
Every execution shall be made returnable, within 60 days after its receipt by the officer, to the clerk of the court from which it issued but if the officer has levied upon property previous to the expiration of the 60 days the officer may retain such execution until the officer has sold the property. The officer shall state in the officer's return how the officer executed the writ.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.06; 1993 a. 486
To what county issued.
When the execution is against the property of the judgment debtor, the execution may be issued to the sheriff of any county where the judgment is entered in the judgment and lien docket. When the execution requires the delivery of real or personal property, the execution shall be issued to the sheriff of the county where the property or some part of the property is situated. Executions may be issued at the same time to different counties.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.07; 1995 a. 224
Sheriff to endorse date of receipt.
Upon receipt of any execution the sheriff or other officer shall endorse thereon the year, month, day and hour of the day when the sheriff or other officer received the same.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.08; 1993 a. 486
Execution against debtor's person.
If the action be one in which the defendant might have been arrested, as provided in ch. 818
, an execution against the person of the judgment debtor may be issued after the return of an execution against the defendant's property unsatisfied in whole or in part; but if the defendant be imprisoned on execution in another action, or upon mesne process in the same action, an execution may issue against the defendant's body without any previous execution against the defendant's property.
Sup. Ct. Order, 67 Wis. 2d 585, 761, 781 (1975); Stats. 1975 s. 815.09; Sup. Ct. Order, 83 Wis. 2d xiii; 1993 a. 486
Execution against body only remedy, exception.
When a party shall have been arrested on an execution no other execution upon the same judgment can be issued against the party or the party's property except as provided by s. 898.10
; but if the party shall escape the party may be retaken by a new execution against the party's body or an execution against the party's property may be issued in the same manner as if the party had never been arrested on execution.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.10; 1993 a. 486
Writs of assistance.
When any order or judgment is for the delivery of possession of property real or personal the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.
History: Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.11.
is the general rule for writs of execution or assistance to enforce orders or judgments for delivery of possession of real or personal property. The following are special provisions for writs of execution or assistance:
ss. 32.05 (8), 32.06 (9) (c) Condemnation proceedings.
s. 779.12 Lien foreclosure.
s. 799.44 Eviction actions.
s. 815.63 Sale of land upon execution.
s. 842.19 Partition.
s. 843.17 Actions for possession of real property.
s. 846.17 Real estate foreclosure.
Execution; death of person arrested.
If any person arrested on execution shall die while under arrest a new execution may issue against the deceased's property in the same manner as if the deceased had never been arrested; but such new execution shall not be levied upon any real estate which the deceased shall have sold in good faith nor upon any real estate which shall have been sold under any other judgment against the deceased.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.12; 1993 a. 486
Execution after debtor's death.
After the expiration of one year from the death of a judgment debtor execution may be issued against any property upon which the judgment was a lien at the time of the debtor's death, and may be executed in the same manner and with the same effect as if the debtor were still living; but no such execution shall issue except upon an order, made upon sufficient cause shown. If such judgment be against such deceased debtor and others jointly execution may issue against surviving judgment debtors without delay.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.14; 1993 a. 486
Execution after judgment creditor's death.
If the judgment creditor dies before satisfaction of the judgment, an execution may be issued by the judgment creditor's attorney of record in the name of the decedent or in the name of the judgment creditor's personal representative. Before an execution shall issue in the name of a personal representative, the personal representative shall file with the clerk a copy of the letters testamentary or other letters authorizing the administration of the decedent's estate, which the clerk shall file with the other papers in the action or proceeding. The clerk shall also enter at the foot of the judgment, in the judgment record, the fact of the death of the judgment creditor and the name and date of appointment of the personal representative. The moneys collected on the judgment shall be paid to the judgment creditor's personal representative, but if there is no personal representative, the moneys collected on the judgment shall be paid to the clerk of the court.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.15; 1983 a. 302
; 1993 a. 486
; 2001 a. 102
Execution; who acts on sheriff's death or removal.
If any sheriff shall die or be removed from office before the execution be returned, the deceased sheriff's undersheriff or deputy shall proceed thereon in the same manner as the sheriff might have done.
Sup. Ct. Order, 67 Wis. 2d 585, 761 (1975); Stats. 1975 s. 815.17; 1993 a. 486
Property exempt from execution. 815.18(1)(1)
This section shall be construed to secure its full benefit to debtors and to advance the humane purpose of preserving to debtors and their dependents the means of obtaining a livelihood, the enjoyment of property necessary to sustain life and the opportunity to avoid becoming public charges.
“Aggregate value" means the sum total of the debtor's equity in the property claimed exempt.
“Annuity" means a series of payments payable during the life of the annuitant or during a specific period.
“Business" means any lawful activity, including a farm operation, conducted primarily for the purchase, sale, lease or rental of property, for the manufacturing, processing or marketing of property, or for the sale of services.
“Closely held business" means a corporation whose stocks are held by not more than 25 individuals, a partnership of not more than 25 partners who are individuals, or a limited liability company of not more than 25 members who are individuals.
“Debtor" means an individual. “Debtor" does not include an association, a corporation, a partnership, a cooperative, an unincorporated cooperative association, or a political body.
“Dependent" means any individual, including a spouse, who requires and is actually receiving substantial support and maintenance from the debtor.
“Depository account" means a certificate of deposit, demand, negotiated order of withdrawal, savings, share, time or like account maintained with a bank, credit union, insurance company, savings bank, savings and loan association, securities broker or dealer or like organization. “Depository account" does not include a safe deposit box or property deposited in a safe deposit box.
“Equipment" means goods used or bought for use primarily in a business, including farming and a profession.
“Equity" means the fair market value of the debtor's interest in property, less the valid liens on that property.
“Exempt" means free from any lien obtained by judicial proceedings and is not liable to seizure or sale on execution or on any provisional or final process issued from any court, or any proceedings in aid of court process.
“Life insurance" means a policy issued by a stock or mutual life insurance company or by any mutual beneficiary or fraternal corporation, society, order or association to insure the life of an individual.
“Motor vehicle" means a self-propelled vehicle. “Motor vehicle" does not include equipment.
“Net income" means gross receipts paid or payable for personal services or derived from rents, dividends or interest less federal and state tax deductions required by law to be withheld.
“Resident" means an individual who intends to maintain his or her principal dwelling in this state.
“To the extent reasonably necessary for the support of the debtor and the debtor's dependents" means what the court determines is required to meet the present and anticipated needs of the debtor and the debtor's dependents, after consideration of the debtor's responsibilities, and the debtor's present and anticipated income and property, including exempt property.
Provisions for burial.
Cemetery lots, aboveground burial facilities, burial monuments, tombstones, coffins, cremation urns, urn vaults, outer burial containers, or other articles for the burial of the dead owned by the debtor and intended for the burial of the debtor or the debtor's family.