History: 1983 a. 323
; Sup Ct. Order, 171 W (2d) xix (1992).
Summons, by whom served. 801.10(1)
Who may serve.
An authenticated copy of the summons may be served by any adult resident of the state where service is made who is not a party to the action. Service shall be made with reasonable diligence.
At the time of service, the person who serves a copy of the summons shall sign the summons and shall indicate thereon the time and date, place and manner of service and upon whom service was made. If the server is a sheriff or deputy sheriff, the server's official title shall be stated. Failure to make the endorsement shall not invalidate a service but the server shall not collect fees for the service.
(3) Proof of service.
The person making service shall make and deliver proof of service to the person on whose behalf service was made who shall promptly file such proof of service. Failure to make, deliver, or file proof of service shall not affect the validity of the service.
(4) Proof if service challenged.
If the defendant appears in the action and challenges the service of summons upon the defendant, proof of service shall be as follows:
Personal or substituted personal service shall be proved by the affidavit of the server indicating the time and date, place and manner of service, that the server is an adult resident of the state of service not a party to the action, that the server knew the person served to be the defendant named in the summons and that the server delivered to and left with the defendant an authenticated copy of the summons. If the defendant is not personally served, the server shall state in the affidavit when, where and with whom the copy was left, and shall state such facts as show reasonable diligence in attempting to effect personal service on the defendant. If the copy of the summons is served by a sheriff or deputy sheriff of the county in this state where the defendant was found, proof may be by the sheriff's or deputy's certificate of service indicating time and date, place, manner of service and, if the defendant is not personally served, the information required in the preceding sentence. The affidavit or certificate constituting proof of service under this paragraph may be made on an authenticated copy of the summons or as a separate document.
Service by publication shall be proved by the affidavit of the publisher or printer, or the foreman or principal clerk, stating that the summons was published and specifying the date of each insertion, and by an affidavit of mailing of an authenticated copy of the summons, with the complaint or notice of the object of the action, as the case may require, made by the person who mailed the same.
The written admission of the defendant, whose signature or the subscription of whose name to such admission shall be presumptive evidence of genuineness.
Sup. Ct. Order, 67 W (2d) 585, 600 (1975); 1975 c. 218
; Sup. Ct. Order, 92 W (2d) xiii (1979).
Judicial Council Committee's Note, 1979: Sub. (2) is amended to clarify that the individual who serves the summons on behalf of the plaintiff under the procedures in the Wisconsin Rules of Civil Procedure must indicate on the copy of the summons served both the time and date of service. There is presently a lack of uniformity of interpretation in Wisconsin of the term "time" in 801.10 (2). Some jurisdictions interpret it to include time and date of service while other jurisdictions interpret it as only the date of service. Clarifying that both the time and date of service must be indicated in the serving of the summons will insure that this potentially valuable information is noted on the served copy of every summons in Wisconsin.
Sub. (4) (a) is amended to also apply the requirement for indicating time and date of service to the affidavits and certificates of service used when proof of service is challenged. [Re Order effective Jan. 1, 1980]
A party is required to show strict compliance with the requirements of this section when service is challenged. Dietrich v. Elliot, 190 W (2d) 816, 528 NW (2d) 17 (Ct. App. 1995).
Personal jurisdiction, manner of serving summons for.
A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 801.05
may exercise personal jurisdiction over a defendant by service of a summons as follows:
(1) Natural person.
Except as provided in sub. (2)
upon a natural person:
By personally serving the summons upon the defendant either within or without this state.
If with reasonable diligence the defendant cannot be served under par. (a)
, then by leaving a copy of the summons at the defendant's usual place of abode:
In the presence of some competent member of the family at least 14 years of age, who shall be informed of the contents thereof;
In the presence of a competent adult, currently residing in the abode of the defendant, who shall be informed of the contents of the summons; or
Pursuant to the law for the substituted service of summons or like process upon defendants in actions brought in courts of general jurisdiction of the state in which service is made.
If with reasonable diligence the defendant cannot be served under par. (a)
, service may be made by publication of the summons as a class 3 notice, under ch. 985
, and by mailing. If the defendant's post-office address is known or can with reasonable diligence be ascertained, there shall be mailed to the defendant, at or immediately prior to the first publication, a copy of the summons and a copy of the complaint. The mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence.
In any case, by serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.
(2) Natural person under disability.
Upon a natural person under disability by serving the summons in any manner prescribed in sub. (1)
upon such person under disability and, in addition, where required by par. (a)
, upon a person therein designated. A minor 14 years of age or older who is not mentally incompetent and not otherwise under guardianship is not a person under disability for purposes of this subsection.
Where the person under disability is a minor under the age of 14 years, summons shall be served separately in any manner prescribed in sub. (1)
upon a parent or guardian having custody of the child, or if there is none, upon any other person having the care and control of the child. If there is no parent, guardian or other person having care and control of the child when service is made upon the child, then service of the summons shall also be made upon the guardian ad litem after appointment under s. 803.01
Where the person under disability is known by the plaintiff to be under guardianship of any kind, a summons shall be served separately upon the guardian in any manner prescribed in sub. (1)
. If no guardian has been appointed when service is made upon a person known to the plaintiff to be incompetent to have charge of the person's affairs, then service of the summons shall be made upon the guardian ad litem after appointment under s. 803.01
Upon the state, by delivering a copy of the summons and of the complaint to the attorney general or leaving them at the attorney general's office in the capitol with an assistant or clerk.
(4) Other political corporations or bodies politic. 801.11(4)(a)(a)
Upon a political corporation or other body politic, by personally serving any of the specified officers, directors, or agents:
If the action is against a county, the chairperson of the county board or the county clerk;
If against a town, the chairperson or clerk thereof;
If against a city, the mayor, city manager or clerk thereof;
If against a village, the president or clerk thereof;
If against a technical college district, the district board chairperson or secretary thereof;
If against a school district or school board, the president or clerk thereof; and
If against any other body politic, an officer, director, or managing agent thereof.
In lieu of delivering the copy of the summons to the person specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
(5) Domestic or foreign corporations or limited liability companies, generally.
Upon a domestic or foreign corporation or domestic or foreign limited liability company:
By personally serving the summons upon an officer, director or managing agent of the corporation or limited liability company either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
If with reasonable diligence the defendant cannot be served under par. (a)
, then the summons may be served upon an officer, director or managing agent of the corporation or limited liability company by publication and mailing as provided in sub. (1)
By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant.
If against any insurer, to any agent of the insurer as defined by s. 628.02
. Service upon an agent of the insurer is not valid unless a copy of the summons and proof of service is sent by registered mail to the principal place of business of the insurer within 5 days after service upon the agent. Service upon any insurer may also be made under par. (a)
(6) Partners and partnerships.
A summons shall be served individually upon each general partner known to the plaintiff by service in any manner prescribed in sub. (1)
where the claim sued upon arises out of or relates to partnership activities within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2)
. A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere.
(7) Other unincorporated associations and their officers.
A summons may be served individually upon any officer or director known to the plaintiff of an unincorporated association other than a partnership by service in the manner prescribed in sub. (1)
where the claim sued upon arises out of or relates to association activities within this state sufficient to subject a defendant to personal jurisdiction under s. 801.05 (2)
. A judgment rendered under such circumstances is a binding adjudication against the association as to its assets anywhere.
Sup. Ct. Order, 67 W (2d) 585, 602 (1975); 1975 c. 218
; 1977 c. 339
; 1979 c. 89
; 1983 a. 192
s. 303 (2)
; 1985 a. 225
; Sup. Ct. Order, 130 W (2d) xix (1986); 1993 a. 112
As to service on corporation, see also s. 180.0504
Effective date note
Judicial Council Note, 1986: Sub. (1) (b) is amended to permit substituted service upon residents of other states. Service upon nonresidents may be made either as provided for Wisconsin residents or in accordance with the substituted service rule of the state wherein service is made. [Re Order eff. 7-1-86]
There is no requirement in cases of substituted service that the affidavit recite that the process server used "reasonable diligence" in attempting to make personal service, but substituted service after 2 calls when defendant was not found, with no effort to learn where he was, was not sufficient to support jurisdiction. Heaston v. Austin, 47 W (2d) 67, 176 NW (2d) 309.
Where a village is defendant, service is void if made upon the clerk's wife in his absence. Town of Washington v. Village of Cecil, 53 W (2d) 710, 193 NW (2d) 674.
The words "apparently in charge of the office" in (5) (a) refer to what is apparent to the process server. When a receptionist referred the process server to her superior, who did not send the server to the proper office, the server could serve him, particularly since the superior had accepted service of process in other actions without objection by the company. Keske v. Square D Co. 58 W (2d) 307, 206 NW (2d) 189.
Where personal jurisdiction is challenged under the "long arm" statutes, the burden is on the plaintiff to prove prima facie the facts supporting jurisdiction. A plaintiff who relies on (5) is required to establish as a predicate that the defendant entered into some consensual agreement with the plaintiff which contemplated a substantial contact in Wisconsin. Afram v. Balfour, Maclaine, Inc. 63 W (2d) 702, 218 NW (2d) 288.
Where affidavit of service under (5) (a) did not identify person served as one specified in (5) (a), no presumption of due service was raised. Danielson v. Brody Seating Co. 71 W (2d) 424, 238 NW (2d) 531.
Where husband could have ascertained wife's address by contacting any one of several relatives and in-laws, prerequisite "due diligence" for service by publication was not established, despite sheriff's affidavit. West v. West, 82 W (2d) 158, 262 NW (2d) 87.
County civil service commission is "body politic" under (4) (a) 7. Watkins v. Milwaukee County Civil Service Comm. 88 W (2d) 411, 276 NW (2d) 775 (1979).
Exact identity and job title of person upon whom service was made was not critical to issue of whether person was "apparently in charge of office" under (5) (a). Horrigan v. State Farm Ins. Co. 106 W (2d) 675, 317 NW (2d) 474 (1982).
See note to 62.13, citing Gibson v. Racine Police & Fire Comm. 123 W (2d) 150, 366 NW (2d) 144 (Ct. App. 1985).
"Reasonable diligence" under (1) discussed. Welty v. Heggy, 124 W (2d) 318, 369 NW (2d) 763 (Ct. App. 1985).
Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landerman v. Martin, 191 W (2d) 788, 530 NW (2d) 62 (Ct. App. 1995).
Admission of service by an assistant attorney general or a clerk specifically designated for that purpose by the attorney general will constitute service of process within the meaning of (3). 63 Atty. Gen. 467.
See note to 801.05, citing Chilcote v. Shertzer, 372 F Supp. 86.
Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action. 801.12(1)
A court of this state exercising jurisdiction in rem or quasi in rem pursuant to s. 801.07
may affect the interests of a defendant in such action only if a summons and either a copy of the complaint or a notice of the object of the action under sub. (2)
have been served upon the defendant as follows:
If the defendant is known, defendant may be served in the manner prescribed for service of a summons in s. 801.11
, but service in such a case shall not bind the defendant personally to the jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.
If the defendant is unknown the summons may be served by publication thereof as a class 3 notice, under ch. 985
The notice of object of action shall be subscribed by the plaintiff or attorney and shall state the general object of the action, a brief description of all the property affected by it, if it affects specific real or personal property, the fact that no personal claim is made against such defendant, and that a copy of the complaint will be delivered personally or by mail to such defendant upon request made within the time fixed in s. 801.09 (2)
. If a defendant upon whom such notice is served unreasonably defends the action the defendant shall pay costs to the plaintiff.
Sup. Ct. Order, 67 W (2d) 585, 606 (1975); 1975 c. 218
Summons; when deemed served.
A summons is deemed served as follows:
A summons served personally upon the defendant or by substituted personal service upon another authorized to accept service of the summons for the defendant is deemed served on the day of service.
A summons served by publication is deemed served on the first day of required publication.
History: Sup. Ct. Order, 67 W (2d) 585, 607 (1975).
Service and filing of pleadings and other papers. 801.14(1)(1)
Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in s. 801.11
Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service by facsimile is complete upon transmission. The first sentence of this subsection shall not apply to service of a summons or of any process of court or of any paper to bring a party into contempt of court.
In any action in which there are unusually large numbers of defendants, the court, upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
All papers after the summons required to be served upon a party, except as provided in s. 804.01 (6)
, shall be filed with the court within a reasonable time after service. The filing of any paper required to be served constitutes a certification by the party or attorney effecting the filing that a copy of such paper has been timely served on all parties required to be served, except as the person effecting the filing may otherwise stipulate in writing.
Sup. Ct. Order, 67 W (2d) 585, 607 (1975); 1975 c. 218
; Sup. Ct. Order, 130 W (2d) xix (1986); Sup. Ct. Order, 161 W (2d) xvii (1991).
Effective date note
Judicial Council Note, 1986: Sub. (4) is amended by insertion of a cross-reference to s. 804.01 (6), providing that discovery documents need not be filed with the court unless the court so orders. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1991: Sub. (2) is amended to clarify that facsimile transmission can be used to serve pleadings and other papers. Such service is deemed complete upon transmission. The change is not intended to expand the permissible means of serving a summons or writ conferring court jurisdiction under s. 799.12 and ch. 801, stats. [Re Order eff. 7-1-91]
Once an action has been commenced, service of the summons and complaint has been made on the defendant and an attorney has appeared on behalf of the defendant, an amended complaint may be served on the defendant's attorney. Bell v. Employers Mutual Casualty Co. 198 W (2d) 347, 541 NW (2d) 824 (Ct. App. 1995).
Except for exhibits and wills, the size of all papers filed in court shall be no larger than 8 1/2 inches by 11 inches.
The clerk of circuit court or register in probate shall return any paper not in conformity with sub. (1)
to the person or party attempting to file it.
History: Sup. Ct. Order, 120 W (2d) xv (1984).
In this subsection, "holiday" means any day which is a holiday provided in s. 230.35 (4) (a)
or a statewide legal holiday provided in s. 895.20
or both, and a full day on Good Friday.
Notwithstanding ss. 985.09
and 990.001 (4)
, in computing any period of time prescribed or allowed by chs. 801
, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.
When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 60 day period under s. 801.02
may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.
The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.