CHAPTER 805
CIVIL PROCEDURE — TRIALS
805.01 Jury trial of right.
805.02 Advisory jury and trial by consent.
805.03 Failure to prosecute or comply with procedure statutes.
805.04 Voluntary dismissal: effect thereof.
805.05 Consolidation; separate trials.
805.09 Juries of fewer than 12; five-sixths verdict.
805.10 Examination of witnesses; arguments.
805.11 Objections; exceptions.
805.13 Jury instructions; note taking; form of verdict.
805.14 Motions challenging sufficiency of evidence; motions after verdict.
805.16 Time for motions after verdict.
805.17 Trial to the court.
805.18 Mistakes and omissions; harmless error.
Ch. 805 Note
NOTE: Chapter 805 was created by Sup. Ct. Order,
67 Wis. 2d 585, 688 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also have these notes.
805.01
805.01
Jury trial of right. 805.01(2)
(2) Demand. Any party entitled to a trial by jury or by the court may demand a trial in the mode to which entitled at or before the scheduling conference or pretrial conference, whichever is held first. The demand may be made either in writing or orally on the record.
805.01(3)
(3) Waiver. The failure of a party to demand in accordance with
sub. (2) a trial in the mode to which entitled constitutes a waiver of trial in such mode. The right to trial by jury is also waived if the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
805.01 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 689 (1975);
1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi (1983);
1983 a. 192.
805.01 Note
Judicial Council Committee Note, 1983: The time deadline for demanding a jury trial is the scheduling conference where that occurs before or in lieu of the pretrial conference because knowledge of the mode of trial is required for proper scheduling. [Re Order effective July 1, 1983]
805.01 Annotation
Just as a legal counterclaim in an equitable action does not necessarily entitle the counterclaimant to a jury trial, an amendment by the plaintiff from equity to law does not necessarily entitle the defendant to a jury trial if the equitable action was brought in good faith. Tri-State Home Improvement Co. v. Mansavage,
77 Wis. 2d 648,
253 N.W.2d 474.
805.01 Annotation
A party is entitled, as a matter of right, to a jury trial on a question of fact if that issue is retried, regardless of an earlier waiver. Tesky v. Tesky,
110 Wis. 2d 205,
327 N.W.2d 706 (1983).
805.01 Annotation
Under the facts of the case, telephone testimony was not permissible. Town of Geneva v. Tills,
129 Wis. 2d 167,
384 N.W.2d 701 (1986).
805.01 Annotation
Where collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trail. Norwest Bank v. Plourde,
185 Wis. 2d 377,
518 N.W.2d 265 (Ct. App. 1994).
805.01 Annotation
The new Wisconsin rules of civil procedure: Chapters 805—807. Graczyk, 59 MLR 671.
805.01 Annotation
See also the notes to Article I, section 5 of the Wisconsin Constitution.
805.02
805.02
Advisory jury and trial by consent. 805.02(1)
(1) In all actions not triable of right by a jury, the court upon motion or on its own initiative may try any issue with an advisory jury.
805.02(2)
(2) With the consent of both parties, the court may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
805.02 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 690 (1975).
805.03
805.03
Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under
s. 804.12 (2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with
s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.
805.03 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 690 (1975).
805.03 Annotation
A complaint was dismissed for non-compliance with a pre-trial order to produce a medical report. Trispel v. Haefer,
89 Wis. 2d 725,
279 N.W.2d 242 (1979).
805.03 Annotation
A judgment dismissing an action was void for lack of advance actual notice of dismissal that defined the "failure to prosecute" standard. Neylan v. Vorwald,
124 Wis. 2d 85,
368 N.W.2d 648 (1985).
805.03 Annotation
Dismissal for failure to prosecute within a year of filing required actual or constructive notice of the applicable standards. Rupert v. Home Mut. Ins. Co.,
138 Wis. 2d 1,
405 N.W.2d 661 (Ct. App. 1987).
805.03 Annotation
Dismissal under this section is presumptively with prejudice. Where the plaintiff failed to show "good cause" for delay, the appeals court erred in dismissing without prejudice. Marshall-Wis. v. Juneau Square,
139 Wis. 2d 112,
406 N.W.2d 764 (1987).
805.03 Annotation
Dismissal for failure to prosecute was not an abuse of discretion. Prahl v. Brosamle,
142 Wis. 2d 658,
420 N.W.2d 372 (Ct. App. 1987).
805.03 Annotation
Where conduct in failing to comply with a court order is egregious and without clear and justifiable excuse, the court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp.
162 Wis. 2d 261,
470 N.W.2d 859 (1991).
805.03 Annotation
Ordering a criminal defendant to pay the state's trial expenses upon mistrial for violation of pretrial order was authorized by this section. State v. Heyer,
174 Wis. 2d 164,
496 N.W.2d 779 (Ct. App. 1993).
805.03 Annotation
In cases that do not fit squarely within this statute, a trial court has certain inherent powers to sanction the parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co.
182 Wis. 2d 148,
513 N.W.2d 16 (Ct. App. 1994).
805.03 Annotation
A party's failure to appear at a scheduled hearing, after writing the court indicating that unless it heard otherwise from the court it would consider itself excused, was insufficient to excuse the party's appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co.
191 Wis. 2d 1,
528 N.W.2d 457 (Ct. App. 1995).
805.03 Annotation
The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall,
194 Wis. 2d 532,
535 N.W.2d 65 (Ct. App. 1995).
805.03 Annotation
Default judgment entered as a sanction is not governed by 806.02 and does not require a full evidentiary hearing where damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP,
207 Wis. 2d 43,
557 N.W.2d 775 (1997).
805.03 Annotation
Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County,
219 Wis. 2d 1,
578 N.W.2d 533 (1998).
805.04
805.04
Voluntary dismissal: effect thereof. 805.04(1)
(1)
By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.
805.04(2)
(2) By order of court. Except as provided in
sub. (1), an action shall not be dismissed at the plaintiff's instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.
805.04(3)
(3) Counterclaim, cross-claim and 3rd party claim. This section applies to the voluntary dismissal of any counterclaim, cross-claim, or 3rd party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.
805.04(4)
(4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.
805.04 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 691 (1975).
