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806.04 Annotation Supplemental relief under (8) may include attorney fees incurred by an insured in establishing coverage under a policy. Elliott v. Donahue, 169 W (2d) 310, 485 NW (2d) 403 (1992).
806.04 Annotation If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 W (2d) 74, 549 NW (2d) 690 (1996).
806.05 806.05 Declaratory judgments against obscene matter.
806.05(1)(1)Grounds for and commencement of action. Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under ch. 985. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court.
806.05(1m) (1m)Interlocutory adjudication. After the issuance of the order to show cause under sub. (1), the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3) or (5), but only until such final judgment is made or until further order of the court.
806.05(2) (2)Right to defend; jury trial. Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.
806.05(3) (3)Default. If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.
806.05(4) (4)Speedy hearing; rules of evidence. If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3). If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901 to 911, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.
806.05(5) (5)Findings and judgment. If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808 and 809 by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.
806.05(6) (6)Admissibility in criminal prosecutions. In any trial for a violation of s. 944.21, the proceeding under this section and the final judgment of the circuit court under sub. (3) or (5) or the interlocutory adjudication under sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant's knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.
806.05 History History: Sup. Ct. Order, 67 W (2d) 585, 721 (1975); 1975 c. 218; 1977 c. 187, 272.
806.05 Annotation Statutory procedures and constitutionality of the statute discussed. State v. I, A Woman—Part II, 53 W (2d) 102, 191 NW (2d) 897.
806.05 Annotation Notice procedure under (1) met due process requirements. State v. Erotomic, 87 W (2d) 536, 275 NW (2d) 160 (Ct. App. 1979).
806.06 806.06 Rendition, perfection and entry of judgment.
806.06(1)(a)(a) A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge's written direction.
806.06(1)(b) (b) A judgment is entered when it is filed in the office of the clerk of court.
806.06(1)(c) (c) A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment.
806.06(1)(d) (d) A judgment is granted when given orally in open court on the record.
806.06(2) (2) The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition.
806.06(3) (3) After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry.
806.06(4) (4) A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs. If proceedings are stayed under s. 806.08, judgment may be perfected at any time within 30 days after the expiration of the stay. If the parties agree to settle all issues but fail to file a notice of dismissal, the judge may direct the clerk to draft an order dismissing the action. No execution shall issue until the judgment is perfected or until the expiration of the time for perfection, unless the party seeking execution shall file a written waiver of entitlement to costs.
806.06(5) (5) Notice of entry of judgment or order must be given within 21 days after the entry of judgment or order to constitute notice under s. 808.04 (1).
806.06 History History: Sup. Ct. Order, 67 W (2d) 585, 724 (1975); 1975 c. 218; Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979); Sup. Ct. Order, 104 W (2d) xi (1981).
806.06 Note Judicial Council Committee's Note, 1979: Sub. (5) is amended by adding a reference to the entry of an order so as to conform with 808.04 (1), which establishes appeal time periods from the entry of a judgment "or" order. [Re Order effective Jan. 1, 1980]
806.06 Note Judicial Council Committee's Note, 1981: Subs. (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry. [Re Order effective Jan. 1, 1982]
806.06 Annotation Notice of entry of judgment was "given" within meaning of 806.06 (5) when it was mailed; 801.15 (5) was inapplicable. Bruns v. Muniz, 97 W (2d) 742, 295 NW (2d) 11 (Ct. App. 1980).
806.06 Annotation Last document in litigation should indicate on its face that for purposes of appeal it is final order or judgment and no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc. 109 W (2d) 490, 326 NW (2d) 240 (1982).
806.06 Annotation See note to 808.04 citing Linnmar, Inc. v. First Enterprises, 161 W (2d) 706, 468 NW (2d) 741 (Ct. App. 1991).
806.07 806.07 Relief from judgment or order.
806.07(1) (1) On motion and upon such terms as are just, the court may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
806.07(1)(a) (a) Mistake, inadvertence, surprise, or excusable neglect;
806.07(1)(b) (b) Newly-discovered evidence which entitles a party to a new trial under s. 805.15 (3);
806.07(1)(c) (c) Fraud, misrepresentation, or other misconduct of an adverse party;
806.07(1)(d) (d) The judgment is void;
806.07(1)(e) (e) The judgment has been satisfied, released or discharged;
806.07(1)(f) (f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
806.07(1)(g) (g) It is no longer equitable that the judgment should have prospective application; or
806.07(1)(h) (h) Any other reasons justifying relief from the operation of the judgment.
806.07(2) (2) The motion shall be made within a reasonable time, and, if based on sub. (1) (a) or (c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b) shall be made within the time provided in s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.
806.07 History History: Sup. Ct. Order, 67 W (2d) 585, 726 (1975); 1975 c. 218.
806.07 Annotation There was no abuse of discretion in denying relief where movant answered complaint by business letter, movant was experienced business person, well-educated and had undergone nearly identical experience in former case. Hansher v. Kaishian, 79 W (2d) 374, 255 NW (2d) 564.
806.07 Annotation Lawyer's failure to answer complaint due to misplacing client's papers while moving office did not relieve client from resulting default judgment. Dugenske v. Dugenske, 80 W (2d) 64, 257 NW (2d) 865.
806.07 Annotation Trial court abused discretion in refusing to vacate default judgment under (1) (a) where defendant sent letter purporting to be an answer to plaintiff's counsel. Maier Const., Inc. v. Ryan, 81 W (2d) 463, 260 NW (2d) 700.
806.07 Annotation Section 805.17 (3) does not limit trial court's discretionary power to grant relief under 806.07 (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith, 82 W (2d) 667, 264 NW (2d) 239.
806.07 Annotation Motion filed over 6 months after entry of judgment was not filed within "reasonable time" under (2). Rhodes v. Terry, 91 W (2d) 165, 280 NW (2d) 248 (1979).
806.07 Annotation See note to 808.07, citing Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
806.07 Annotation Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 W (2d) 407, 284 NW (2d) 674 (1979).
806.07 Annotation Neglect of both lawyer and client was not "excusable". Charolais Breeding Ranches v. Wiegel, 92 W (2d) 498, 285 NW (2d) 720 (1979).
806.07 Annotation Trial court did not abuse discretion in setting aside judicial sale where buyer based bid on incorrect figures in judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 W (2d) 190, 286 NW (2d) 581 (1980).
806.07 Annotation Relief from judgment entered in ch. 227 review may not be granted under this section. Charter Mfg. v. Milw. River Restoration, 102 W (2d) 521, 307 NW (2d) 322 (Ct. App. 1981).
806.07 Annotation Court did not err in refusing to reopen erroneously entered judgment. Wis. Pub. Serv. Corp. v. Krist, 104 W (2d) 381, 311 NW (2d) 624 (1981).
806.07 Annotation New testing methods to establish paternity cannot be used to affect finality of long-decided paternity determination. State ex rel. R. A. S. v. J. M. 114 W (2d) 305, 338 NW (2d) 851 (Ct. App. 1983).
806.07 Annotation See note to 814.025, citing Wengerd v. Rinehart, 114 W (2d) 575, 338 NW (2d) 861 (Ct. App. 1983).
806.07 Annotation Sub. (1) (h) allows relief even if claim sounds in par. (a), (b) or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H. 122 W (2d) 536, 363 NW (2d) 419 (1985).
806.07 Annotation "Reasonable time" requirement of (2) does not apply to void judgments. Neyland v. Vorwald, 124 W (2d) 85, 368 NW (2d) 648 (1985).
806.07 Annotation Order granting motion under (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc. 145 W (2d) 66, 426 NW (2d) 41 (Ct. App. 1988).
806.07 Annotation Order vacating judgment arises in context of underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Ins. Agency, Inc. 145 W (2d) 66, 426 NW (2d) 41 (Ct. App. 1988).
806.07 Annotation Court may not use (1) (h) purely as vehicle to extend time period for appeal. Eau Claire County v. Employers Ins. 146 W (2d) 101, 430 NW (2d) 579 (Ct. App. 1988).
806.07 Annotation Finding that there are grounds to reopen divorce judgment under (1) does not require reopening it; trial court may exercise discretion in determining whether there are factors militating against reopening judgment. In re Marriage of Johnson v. Johnson, 157 W (2d) 490, 460 NW (2d) 166 (Ct. App. 1990).
806.07 Annotation A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under (1) (h). Schwochert v. American Family Ins. Co. 166 W (2d) 97, 479 NW (2d) 190 (Ct. App. 1991). See also Schwochert v. American Family Ins. Co. 172 W (2d) 628, 494 NW (2d) 201 (1992).
806.07 Annotation A property division may be modified under s. 806.07, however the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 W (2d) 285, 493 NW (2d) 737 (Ct. App. 1992).
806.07 Annotation Sub. (1) (g) applies only to equitable actions. Nelson v. Taff, 175 W (2d) 178, 499 NW (2d) 685 (Ct. App. 1993).
806.07 Annotation A "reasonable time" to bring a motion under (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C. 181 W (2d) 618, 511 NW (2d) 868 (Ct. App. 1994).
806.07 Annotation Bank, in failing to file an answer due to mislaying papers, was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 W (2d) 321, 525 NW (2d) 271 (Ct. App. 1994).
806.07 Annotation In determining whether to overturn a default judgment the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored and default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 W (2d) 321, 525 NW (2d) 271 (Ct. App. 1994).
806.07 Annotation A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliot, 190 W (2d) 816, 528 NW (2d) 17 (Ct. App. 1995).
806.07 Annotation Case law is not a "prior judgment" under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass'n, 194 W (2d) 62, 533 NW (2d) 470 (1995).
806.08 806.08 Stay of proceedings to enforce a judgment.
806.08(1)(1) Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Subsection (3) governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
806.08(2) (2) In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial, or to alter or amend a judgment, or of a motion for relief from a judgment or order.
806.08(3) (3) When an appeal is taken from an interlocutory or final judgment or appealable order granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
806.08(4) (4) When an appeal is taken, the appellant may obtain a stay in accordance with s. 808.07.
806.08(5) (5) This section does not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
806.08(6) (6) When a court has rendered a final judgment under the conditions stated in s. 806.01 (2), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
806.08 History History: Sup. Ct. Order, 67 W (2d) 585, 726 (1975); Sup. Ct. Order, 67 W (2d) vii (1975); 1977 c. 187 s. 135; 1979 c. 110 s. 60 (9).
806.09 806.09 Restitution in case of reversed judgment; purchaser for value.
806.09(1)(1) If any judgment or part of a judgment is collected and such judgment is afterwards set aside or reversed, the trial court shall order the same to be restored with interest from the time of the collection, but in case a new trial is ordered the party who has collected the judgment may retain the same pending the new trial, upon giving a bond in such sum and with such sureties as the court shall order, conditioned for the restoration of the amount collected with interest from the time of collection. The order of restitution may be obtained upon proof of the facts upon notice and motion and may be enforced as a judgment. Nothing herein shall affect or impair the right or title of a purchaser for value in good faith without notice.
806.09(2) (2) Whenever in a civil action on appeal to the court of appeals or the supreme court the appellant fails to stay execution and pending the appeal the sheriff or other officer collects all or any part of the judgment appealed from, the officer collecting the judgment shall deposit the amount collected, less the officer's fees, with the clerk of the court out of which execution issued. In case of reversal on the appeal, restitution may be made in accordance with sub. (1). In case of affirmance the clerk shall pay over the deposit to the judgment creditor on the filing of the remittitur from the court of appeals or the supreme court.
806.09 History History: Sup. Ct. Order, 67 W (2d) 585, 728 (1975); 1975 c. 218; 1977 c. 187.
806.10 806.10 Judgment and lien docket.
806.10(1) (1) At the time of entry of a judgment directing in whole or in part the payment of money, or a judgment naming a spouse under s. 806.15 (4), and upon payment of the fee prescribed in s. 814.61 (5) (b), the clerk of circuit court shall enter the judgment in the judgment and lien docket, arranged alphabetically, including all of the following:
806.10(1)(a) (a) The full name and place of residence of each judgment debtor and of the spouse or former spouse of the judgment debtor if the spouse is named in a judgment described under s. 806.15 (4). If the judgment or judgment and lien docket fails to give the place of residence of the judgment debtor or the judgment debtor's spouse or former spouse, the validity of the judgment is not affected thereby, but the judgment creditor may at any time file with the clerk of circuit court an affidavit stating, on knowledge or information and belief, the information. The clerk of circuit court shall thereupon enter the facts according to the affidavit in the judgment and lien docket, noting the date and time of the entry.
806.10(1)(b) (b) The name of the judgment creditor, in like manner.
806.10(1)(c) (c) The name of the attorney for the judgment creditor, if stated in the record.
806.10(1)(d) (d) The date of the entry of the judgment.
806.10(1)(e) (e) The day and time of entry.
806.10(1)(f) (f) The amount of the debt, damages or other sum of money recovered, with the costs.
806.10(1m) (1m) If a judgment is against several persons, the clerk of circuit court shall enter the judgment, in accordance with the procedure under sub. (1) in the judgment and lien docket under the name of each person against whom the judgment was rendered.
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