Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1)
within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
History: 1971 c. 46
; Sup. Ct. Order, 67 W (2d) 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135
; 1977 c. 187
; Sup. Ct. Order, 82 W (2d) ix (1978); 1977 c. 449
; 1979 c. 175
; 1981 c. 137
; 1987 a. 68
Judicial Council Note, 1977: Section 801.58 of the statutes has been changed in a number of significant ways. The statute states that a substitution of judge request in a civil action or proceeding is timely only if made before the hearing of a preliminary contested matter, codifying Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241
A new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]
Judicial Council Committee's Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]
Judicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.
Sub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514
(1980). [Bill 163-S]
Right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence which of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Coop. v. NFO, 64 W (2d) 241, 219 NW (2d) 564.
Bacon-Bahr rule, which interprets this section to bar substitution in proceedings to modify support or custody orders, applies only to cases in which judge has been previously involved. State ex rel. Tarney v. McCormack, 99 W (2d) 220, 298 NW (2d) 552 (1980).
Substitution of judge request may be filed with deputy clerk. In Matter of Civil Contempt of Kroll, 101 W (2d) 296, 304 NW (2d) 175 (Ct. App. 1981).
Added party may request substitution within 60 days of service if added party has not actually participated in preliminary contested matters. City of La Crosse v. Jiracek Cos., Inc. 108 W (2d) 684, 324 NW (2d) 440 (Ct. App. 1982).
Ten day period for substitution under (1) is triggered by receipt of actual notice that new judge has been assigned. State ex rel. Laborers Union v. Kenosha Cir. Ct. 112 W (2d) 337, 332 NW (2d) 832 (Ct. App. 1983).
Sub. (7) creates unqualified right to substitution when further trial court proceedings are necessary after remand from appellate court. State ex rel. Oman v. Hunkins, 120 W (2d) 86, 352 NW (2d) 220 (Ct. App. 1984).
"Further proceedings" under 801.58 (7) and 808.08 (3) have same definition. State ex rel. Ondrasek v. Circuit Ct. 133 W (2d) 177, 394 NW (2d) 912 (Ct. App. 1986).
Where parties are united in interest and pleading together, if one presents its views in preliminary contested matter, all united parties are barred from moving for substitution. Carkel, Inc. v. Lincoln Cir. Ct. 141 W (2d) 257, 414 NW (2d) 640 (1987).
Where trial court is ordered to clarify its ruling in divorce matter on remand, Bacon-Bahr rule applies and no substitution under (7) is permitted. Parrish v. Kenosha County Circuit Ct. 148 W (2d) 700, 436 NW (2d) 608 (1989).
Because ex parte restraining order is not issued in context of contested proceeding, substitution request may be granted subsequent to entry of order and prior to hearing on merits. Threlfall v. Town of Muscoda, 152 W (2d) 308, 448 NW (2d) 274 (Ct. App. 1989).
Where recommitment hearing under 51.20 (13) (g) 3 is before same judge who conducted original commitment proceeding, request for substitution is not allowed. Serocki v. Clark County Circ. Ct. 163 W (2d) 152, 471 NW (2d) 49 (1991).
Where appellate court remand requires a specific action by the trial court no substitution is allowed under sub. (7). Estate of Rusilowski, 171 W (2d) 648, 492 NW (2d) 345 (Ct. App. 1992).
Requirement of sub. (1) that substitution requests be filed preceding the hearing of any "preliminary contested matters" applies to requests filed under sub. (5); a motion to compel discovery constitutes a "preliminary contested matter". State ex rel. Sielen v. Milw. Cir. Ct. 176 W (2d) 101, 499 NW (2d) 651 (1993).
A nonsummary contempt motion is a part of the underlying action from which it arises and the time allowed for requesting judicial substitution runs from the commencement of the action not from receipt of notice of the contempt proceeding. James L.J. v. Walworth County Circuit Court, 200 W (2d) 496, 546 NW (2d) 460 (1996).
The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. James L.J. v. Walworth County Circuit Court, 200 W (2d) 496, 546 NW (2d) 460 (1996).
The civil peremptory substitution statute. Seaburg, WBB January, 1986.
In any case where another judge has been assigned under s. 751.03
to hear a particular action or proceeding, the clerk of circuit court shall forthwith notify all parties to the action or proceeding, by mail or telephone, noting in the case file the time notice was sent or given and, if notice is given by telephone, the person with whom he or she spoke. If a written request for a substitution of a new judge is filed with regard to an assigned judge, it shall be filed within 7 days after notice of the assignment has been received. A copy of the written request shall be mailed forthwith to all parties and to the named judge.
History: 1971 c. 296
; Sup. Ct. Order, 67 W (2d) 585, 757 (1975); 1977 c. 187
; Sup. Ct. Order, 141 W (2d) xiii (1987).
Judicial Council Note, 1988: This section is amended by allowing notice of a newly assigned judge to be given to the parties by telephone. Notation of the time of notice is required for purposes of s. 801.58 (1). [Re Order effective Jan. 1, 1988]
Proceedings after order for change of venue.
When the place of trial is changed all process, pleadings and other papers, and copies of all entries and minutes of the clerk in such action shall be certified and transmitted by such clerk to the clerk of the court to which the trial is changed, with a statement of fees. Such fees shall be paid before transmission by the party procuring such change, except in the case mentioned in s. 801.51
, in which case the plaintiff shall pay such fees and the change shall be complete on the making of the order. The change, in other cases, shall be complete on filing the papers transmitted. If such transmission and filing be not made within 20 days from the making of the order to change the place of trial, unless such time be extended, the moving party shall lose the right to the change except in the case mentioned in s. 801.51
, and no order for a change for the same cause shall thereafter be made and the moving party shall pay the costs of the application within 10 days after the expiration of said 20 days; but the other party may, within 40 days from the time of making of the order granting the change, pay the clerk fees and have the papers certified and transmitted to the court mentioned in such order.
Sup. Ct. Order, 67 W (2d) 585, 757 (1975), 777; 1975 c. 218
; Stats. 1975 s. 801.61; 1983 a. 228
Conclusiveness of change of venue; second motion.
After trial in the court to which the action has been changed, the proceedings for the change shall be conclusive unless a motion to remand was made before the trial commences. If after the transmission of the papers an order changing the place of trial is reversed or set aside the effect shall be to change the place of trial back. After the transmission of the papers back to the original court on the reversal or setting aside of the order, a party may renew the application for a change of venue within 20 days. The renewed application shall be treated as the original application.
Sup. Ct. Order, 67 W (2d) 585, 757 (1975); 1975 c. 218
; Stats. 1975 s. 801.62; 1977 c. 449
Stay of proceeding to permit trial in a foreign forum. 801.63(1)(1)
Stay on initiative of parties.
If a court of this state, on motion of any party, finds that trial of an action pending before it should as a matter of substantial justice be tried in a forum outside this state, the court may in conformity with sub. (3)
enter an order to stay further proceedings on the action in this state. A moving party under this subsection must stipulate consent to suit in the alternative forum and waive right to rely on statutes of limitation which may have run in the alternative forum after commencement of the action in this state. A stay order may be granted although the action could not have been commenced in the alternative forum without consent of the moving party.
(2) Time for filing and hearing motion.
The motion to stay the proceedings shall be filed prior to or with the answer unless the motion is to stay proceedings on a cause raised by counterclaim, in which instance the motion shall be filed prior to or with the reply. The issues raised by this motion shall be tried to the court in advance of any issue going to the merits of the action and shall be joined with objections, if any, raised by answer or motion pursuant to s. 802.06 (2)
. The court shall find separately on each issue so tried and these findings shall be set forth in a single order.
(3) Scope of trial court discretion on motion to stay proceedings.
The decision on any timely motion to stay proceedings pursuant to sub. (1)
is within the discretion of the court in which the action is pending. In the exercise of that discretion the court may appropriately consider such factors as:
Amenability to personal jurisdiction in this state and in any alternative forum of the parties to the action;
Convenience to the parties and witnesses of trial in this state and in any alternative forum;
Differences in conflict of law rules applicable in this state and in any alternative forum; or
Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
(4) Subsequent modification of order to stay proceedings.
Jurisdiction of the court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.
Motions under this section may be heard on the record as prescribed in s. 807.13
Sup. Ct. Order, 67 W (2d) 585, 612 (1975), 758, 777; 1975 c. 218
; Stats. 1975 s. 801.63; Sup. Ct. Order, 141 W (2d) xiii (1987); Sup. Ct. Order, 151 W (2d) xvii (1989).
Judicial Council Note, 1988: Sub. (5) [created] allows motions for stays under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
A motion to stay a Wisconsin action or transfer the case to an Iowa court where an action arising out of the same accident was pending was properly denied where the parties were different and because of Iowa law the plaintiff would lose substantial rights. Littmann v. Littmann, 57 W (2d) 238, 203 NW (2d) 901.
A court ordinarily should adjudicate the litigation before it and the plaintiff's choice of a forum should rarely be disturbed unless the balance is strongly in favor of the defendant. A trial of the cause should be permitted in another state only upon a convincing showing that the trial in Wisconsin is likely to result in a substantial injustice. U.I.P. Corp. v. Lawyers Title Ins. Corp. 65 W (2d) 377, 222 NW (2d) 638.
Party seeking stay must show not only that trial in forum state will be inconvenient and unjust, but also that trial in another forum is both more convenient and just. U.I.P. Corp. v. Lawyers Title Ins. Corp. 82 W (2d) 616, 264 NW (2d) 525.
See note to 822.07, citing Mayer v. Mayer, 91 W (2d) 342, 283 NW (2d) 591 (Ct. App. 1979).