Clarify an issue of general importance in the administration of justice.
History: 1977 c. 187
; 1979 c. 192
; Sup. Ct. Order, 130 W (2d) xix (1986); 1995 a. 139
; s. 13.93 (2) (c).
Cross-reference. See s. 767.15 (2) for appeals involving child support and maintenance.
Judicial Council Note, 1979: Sub. (1) is amended to modify the statutory definition of the final judgment or final order that may be appealed as a matter of right to the court of appeals. Most types of cases decided in circuit court have a final judgment or order entered with the office of clerk of court. Because of the volume of traffic regulation and municipal ordinance violation cases prosecuted in circuit court, the prevailing custom in Wisconsin counties is to only record the dispositions of those cases in docket entries. Requiring counties to meet the present statutory requirement in s. 808.03 (1) for the entry of a final judgment or order in all cases for purposes of having an appealable matter is unnecessarily burdensome and costly. The term "traffic regulation cases" refers to only those traffic violation cases in which the penalty is a civil forfeiture. [Bill 396-S]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended to clarify that docket entries in small claims and other ch. 799 cases may be final orders from which an appeal may be taken as of right. See 1979 Judicial Council Note to sub. (1). [Re Order eff. 7-1-86]
Appeal cannot be taken from order before it is entered. Ramsthal Adv. Agency v. Energy Miser, Inc. 90 W (2d) 74, 279 NW (2d) 491 (Ct. App. 1979).
See note to 805.15, citing Earl v. Marcus, 92 W (2d) 13, 284 NW (2d) 690 (Ct. App. 1979).
Test to determine whether decision is final order or judgment is whether trial court contemplated that additional formal document would be entered with respect to matter covered in decision. Frederick v. City of Janesville, 92 W (2d) 685, 285 NW (2d) 655 (1979).
Pretrial order denying motion to dismiss on double jeopardy grounds is nonfinal order appealable only under (2). State v. Jenich, 94 W (2d) 74, 288 NW (2d) 114 (1980).
Order waiving jurisdiction over juvenile is appealable under (2). State ex rel. A. E. v. Green Lake County Cir. Ct. 94 W (2d) 98, 288 NW (2d) 125 (1980).
See note to 974.05, citing State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
See note to 801.08, citing Heaton v. Independent Mortuary Corp. 97 W (2d) 379, 294 NW (2d) 15 (1980).
Orders relating to venue are appealable by permission under (2). Aparacor, Inc. v. DILHR, 97 W (2d) 399, 293 NW (2d) 545 (1980).
See note to 801.08, citing Grulkowski v. Dept. of Transp. 97 W (2d) 615, 294 NW (2d) 43 (Ct. App. 1980).
Order enjoining town from conducting incorporation referendum under 60.81 terminated only matter in litigation with respect to town, although ch. 66 incorporation proceedings had not been finally determined by the order. In re Incorporation of Town of Fitchburg, 98 W (2d) 635, 299 NW (2d) 199 (1980).
Court order setting aside an administrative order and remanding case to administrative agency was appealable as of right. Bearns v. DILHR, 102 W (2d) 70, 306 NW (2d) 22 (1981).
Where counterclaim for abuse of process, severed for trial, was not yet determined, judgment dismissing complaint was not appealable under (1). Brownsell v. Klawitter, 102 W (2d) 108, 306 NW (2d) 41 (1981).
Order for new trial is not appealable as of right. Wick v. Mueller, 105 W (2d) 191, 313 NW (2d) 799 (1982).
See note to 806.06, citing Radoff v. Red Owl Stores, Inc. 109 W (2d) 490, 326 NW (2d) 240 (1982).
Trial court did not have jurisdiction to award attorney's fees after filing of notice of appeal of another issue. In re Marriage of Hengel v. Hengel, 120 W (2d) 522, 355 NW (2d) 846 (Ct. App. 1984).
Court commissioner's order under 757.69 (1) dismissing criminal proceeding was not "final order" under 808.03 (1). State v. Trongeau, 135 W (2d) 188, 400 NW (2d) 12 (Ct. App. 1986).
Appellate court has no jurisdiction to review denial of postconviction motion if there is no final written order denying that motion on file in clerk of court's office. State v. Malone, 136 W (2d) 250, 401 NW (2d) 563 (1987).
Criminal defendant's right to appeal continues after death, regardless of cause of death. State v. McDonald, 144 W (2d) 531, 424 NW (2d) 411 (1988).
Judgment resolving merits of 42 USC 1983 action is final and appealable under (1) though attorney's fee issue remains unresolved. ACLU v. Thompson, 155 W (2d) 442, 455 NW (2d) 268 (Ct. App. 1990).
Circuit court's retained jurisdiction in board of review certiorari actions under 70.47(13) does not affect finality of order for appeal purposes. Steenberg v. Town of Oakfield, 157 W (2d) 674, 461 NW (2d) 148 (Ct. App. 1990).
See note to 343.305 citing State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
When an appeal is taken as a matter of right only the final document need be reduced to writing; nonfinal rulings need not be reduced to writing to be eligible for review under an appeal of a subsequent final order. Jacquart v. Jacquart, 183 W (2d) 372, 515 NW (2d) 539 (Ct. App. 1994).
Wisconsin Court of Appeals Appellate Jurisdiction. Klein and Leavell. Wis. Law. Sept. 1991.
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
Time for appeal to the court of appeals. 808.04(1)
Initiating an appeal.
An appeal to the court of appeals must be initiated within 45 days of entry of judgment or order appealed from if written notice of the entry of judgment or order is given within 21 days of the judgment or order as provided in s. 806.06 (5)
, or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law.
An appeal under s. 227.60
shall be initiated within 15 days after entry of judgment or order appealed from.
Except as provided in subs. (4)
, an appeal in a criminal case or a case under ch. 48
shall be initiated within the time period specified in s. 809.30
Except as provided in sub. (7m)
, an appeal by the state in either a criminal case under s. 974.05
or a case under ch. 48
shall be initiated within 45 days of entry of the judgment or order appealed from.
A person imprisoned or in the intensive sanctions program on a criminal sentence against whom a civil final judgment or order is rendered has 120 days in which to appeal the civil judgment or order.
When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party's death, whichever is later. If no personal representative qualifies within 60 days after the party's death, any appellant may have a personal representative appointed under s. 856.07 (2)
An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by s. 809.30 (2) (b)
within 40 days of the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (b)
, this time may not be enlarged.
An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by s. 809.107 (2)
within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (b)
, this time period may not be enlarged.
If the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof.
History: 1977 c. 187
; 1979 c. 32
s. 92 (9)
, (14); 1979 c. 89
; 1981 c. 152
; 1981 c. 314
; 1983 a. 183
; 1983 a. 491
; 1985 a. 182
; Sup. Ct. Order, 130 W (2d) xi, xix (1986); Sup. Ct. Order, 136 W (2d) xxv (1987); 1989 a. 56
; 1989 a. 192
; 1991 a. 39
; Sup. Ct. Order, 168 W (2d) xix (1992); 1993 a. 395
; 1995 a. 77
See s. 809.50
for time to file permissive appeals.
Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children's code cases. [Bill 151-S]
Effective date note
Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]
Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]
Notice under (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Ins. Co. 90 W (2d) 76, 279 NW (2d) 492 (Ct. App. 1979).
See note to 799.24, citing Mock v. Czemierys, 113 W (2d) 207, 336 NW (2d) 188 (Ct. App. 1983).
To shorten appeal period under (1), formal, captioned and signed notice of entry of judgment stating date of entry must be served on opposing party within 21 days of entry date and must be filed. In re Marriage of Soquet v. Soquet, 117 W (2d) 553, 345 NW (2d) 401 (1984).
Date stamped on judgment didn't control as to date of actual filing. Matter of Estate of Ristau, 144 W (2d) 421, 424 NW (2d) 203 (1988).
See note to 785.03, citing Matter of Contempt in State v. Simmons, 150 W (2d) 178, 441 NW (2d) 308 (Ct. App. 1989).
Under (1), notice of entry of judgment must be given within 21 days of entry of judgment, not of signing, consistent with 806.06 (5). Linnmar, Inc. v. First Enterprises, 161 W (2d) 706, 468 NW (2d) 753 (Ct. App. 1991).
See note to 805.17 citing Salzman v. DNR, 168 W (2d) 523, 484 NW (2d) 337 (Ct. App. 1992).
Strict compliance with the procedures for providing notice of entry of judgment is required. Notice of entry of judgment was ineffective where it was mailed to an incorrect address. Nichols v. Conlin, 198 W (2d) 287, 542 NW (2d) 194 (Ct. App. 1995).
The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:
It grants direct review upon a petition to bypass filed by a party;
It grants direct review upon certification from the court of appeals prior to the court of appeals hearing and deciding the matter; or
It, on its own motion, decides to review the matter directly.
History: 1977 c. 187
Relief pending appeal. 808.07(1)
Effect of appeal.
An appeal does not stay the execution or enforcement of the judgment or order appealed from except as provided in this section or as otherwise expressly provided by law.
(2) Authority of a court to grant relief pending appeal. 808.07(2)(a)(a)
During the pendency of an appeal, a trial court or an appellate court may:
Stay execution or enforcement of a judgment or order;
Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07
Except as provided in s. 655.27 (5) (a) 3.
, relief under this subsection may be conditioned upon the filing of an undertaking in the trial court.
(3) Undertaking for costs.
An undertaking for costs is not required unless specifically required by statute, or, except as provided in s. 655.27 (5) (a) 3.
, by the trial court acting in its discretion.
(4) Proceedings against a surety.
A surety on an undertaking is subject to the jurisdiction of the trial court and irrevocably appoints the clerk of that court as the surety's agent for service of any papers affecting his or her liability on the undertaking. A person may seek to enforce the surety's liability by filing a motion in the action or proceeding in the trial court in which the undertaking was filed.
(5) Public officials.
A person or agency suing or being sued in an official public capacity is not required to execute an undertaking as a condition for relief under this section unless, except as provided in s. 655.27 (5) (a) 3.
, required by the court in its discretion.
(6) Sureties on undertakings.
A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in s. 632.17 (2)
. The respondent may by motion object to the sufficiency of a surety within 10 days after service of a copy of the undertaking.
History: 1977 c. 187
; 1979 c. 32
; 1979 c. 110
s. 60 (9)
; 1983 a. 158
; Sup. Ct. Order, 130 W (2d) xix (1986); 1985 a. 332
Effective date note
Judicial Council Note, 1986: Sub. (2) (am) carries forward the authority of trial courts to hear and determine motions for relief from judgment during the pendency of an appeal. Authority of the appellate court to hear and determine such motions under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86]
Postjudgment order of circuit court denying motion under (2) (a) 4 [now (2) (am)] is not reviewable on appeal from judgment. Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
Under (1) and 808.075(1), circuit court has authority to confirm sheriff's sale even though appeal of judgment of foreclosure and sale is pending. Community Nat. Bank v. O'Neill, 157 W (2d) 244, 458 NW (2d) 385 (Ct. App. 1990).
Permitted court actions pending appeal. 808.075(1)(1)
In any case, whether or not an appeal is pending, the circuit court may act under ss. 804.02 (2)
, 805.17 (3)
, 806.15 (2)
, 806.24 (4)
, 808.07 (1)
In a case appealed under s. 809.30
, the circuit court retains the power to act on all issues until the notice of appeal has been filed with the clerk of the trial court. Thereafter, the circuit court may act only as provided in subs. (1)
In a case not appealed under s. 809.30
, the circuit court retains the power to act on all issues until the record has been transmitted to the court of appeals. Thereafter, the circuit court may act only as provided in subs. (1)
The circuit court may act as to the following despite the pendency of an appeal: