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.
The time for initiating an appeal under s. 808.04
, for deciding motions after verdict under s. 805.16 (3)
, and for making motions for reconsideration under s. 805.17 (3)
or for relief from judgment or order under s. 48.46 (2)
may not be enlarged.
A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
If the notice or paper is served by facsimile transmission and such transmission is completed between 5 p.m. and midnight, 1 day shall be added to the prescribed period.
Effective date note
Sup. Ct. Order, 67 W (2d) 585, 610 (1975); 1975 c. 218
; Sup. Ct. Order, 73 W (2d) xxxi (1976); 1977 c. 187
; 1977 c. 449
; 1979 c. 89
; 1983 a. 192
; 1985 a. 145
; Sup Ct. Order, 130 W (2d) xi (1986); 1985 a. 332
; Sup. Ct. Order, 136 W (2d) xxv (1987); Sup. Ct. Order, 146 W (2d) xxxiii (1988); Sup. Ct. Order, 160 W (2d) xiv (1991); Sup. Ct. Order, 161 W (2d) xvii (1991); Sup. Ct. Order, No. 94-05, filed 4-27-94, eff. 7-1-94.
Cross-references: See s. 32.05 (4) for exception to provision for added time in case of mailing.
Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year's eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employes, and the amendment will permit clerks to close their offices at these times. [85 Act 145]
Judicial Council Committee's Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8).
Pars. (2) (b) and (c) are independent provisions. The enlargement of time "for good cause" provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word "extended" is replaced by the word "enlarged" in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91]
Effective date note
Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91]
Judicial Council Note, 1994 Subsection (1) (b) is amended by excluding the last day of a time period from the computation if the clerk of courts office is closed all day.
Court has no authority to enlarge time in which to file complaint. Pulchinski v. Strnad, 88 W (2d) 423, 276 NW (2d) 781 (1979).
See note to 809.10, citing Boston Old Colony Ins. v. Int'l. Rectifier Corp. 91 W (2d) 813, 284 NW (2d) 93 (1979).
Error based on late service and filing of affidavit was waived by failure to object at hearing. In re Spring Valley Meats, Inc. 94 W (2d) 600, 288 NW (2d) 852 (1980).
See note to 806.06, citing Bruns v. Muniz, 97 W (2d) 742, 295 NW (2d) 112 (Ct. App. 1980).
See note to 108.09, citing Schiller v. DILHR, 103 W (2d) 353, 309 NW (2d) 5 (Ct. App. 1981).
Trial court abused discretion in enlarging time to file answer where answer was served 9 days after deadline. Hedtcke v. Sentry Ins. Co. 109 W (2d) 461, 326 NW (2d) 727 (1982).
Time computation under 32.05 (10) (a) and 32.06 (10) is controlled by 801.15 (1), not 990.001 (4). In Matter of Petition of Elec. Power Co. 110 W (2d) 649, 329 NW (2d) 186 (1983).
Service of answer was timely under terms of courtesy agreement. Oostburg Bank v. United Savings, 130 W (2d) 4, 386 NW (2d) 53 (1986).
See note to 805.16, citing Brookhouse v. State Farm Mut. Ins. 130 W (2d) 166, 387 NW (2d) 82 (Ct. App. 1986).
Trial court lost jurisdiction to decide motions after verdict by consecutively extending time for its decision under (2) (b). Ford Motor Co. v. Lyons, 137 W (2d) 397, 405 NW (2d) 354 (Ct. App. 1987).
Because courtesy agreement was made after default, court didn't abuse discretion by insisting on compliance with (2) (a). Clark County v. B.T.U. Structures, 144 W (2d) 11, 422 NW (2d) 910 (Ct. App. 1988).
Trial court has discretion to allow a jury trial where fees under s. 814.61 (4) were not timely paid. Chitwood v. A. O. Smith Harvestore, 170 W (2d) 622, 489 NW (2d) 697 (Ct. App. 1992).
While clerical error is not always excusable it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. 196 W (2d) 907, 539 NW (2d) 911 (Ct. App. 1995).
Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.
The filing of pleadings and other papers with the court as required by these statutes shall be made by filing them with the clerk of circuit court. The judge may require that the person filing the papers provide a copy to the judge.
For papers that do not require a filing fee:
A court may adopt a local rule, if it is approved by the chief judge, that requires the use of a plain-paper facsimile machine and permits the filing of those papers by facsimile transmission to the clerk of circuit court.
If no rule has been adopted under par. (a)
, a judge may permit a party or attorney in a specific matter to file those papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine.
The party or attorney, by filing papers by facsimile transmission, certifies that permission of the judge or court for filing by facsimile transmission has been granted. Papers filed by facsimile transmission are considered filed when transmitted except that papers filed by facsimile transmission completed after regular business hours of the clerk of court's office are considered filed the next business day.
Effective date note
Sup. Ct. Order, 161 W (2d) xvii (1991); Sup. Ct. Order No. 94-11
, filed 10-25-94, eff. 1-1-95.
Effective date note
Judicial Council Note, 1991: Sub. (2) clarifies that papers (other than those requiring a filing fee) may be filed by facsimile transmission to the judge or clerk, if a local court rule, or the judge in a specific matter, so permits. [Re Order eff. 7-1-91.]
A notice of appeal may not be filed by facsimile transmission. Only papers that do not require a filing fee may be filed by fax. Pratsch v. Pratsch, 201 W (2d) 491, 548 NW (2d) 852 (Ct. App. 1996).
Venue in civil actions or special proceedings. 801.50(1)(1)
A defect in venue shall not affect the validity of any order or judgment.
Except as otherwise provided by statute, venue in civil actions or special proceedings shall be as follows:
In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;
In the county where a defendant resides or does substantial business; or