806.06 Annotation
Sub. (4) governs the timeliness of an application for attorney fees in a federal civil rights action. Hartman v. Winnebago County,
216 Wis. 2d 418,
574 N.W.2d 222 (1998).
806.06 Annotation
No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857.
806.06 Annotation
An action to enforce a contractual agreement to pay attorney fees in the event of a suit between the parties to the contract was subject to the time limit under sub. (4). Purdy v. Cap Gemini America, Inc. 2001 WI App 270,
248 Wis. 2d 804,
637 N.W.2d 763.
806.07
806.07
Relief from judgment or order. 806.07(1)
(1) On motion and upon such terms as are just, the court, subject to
subs. (2) and
(3), 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)(c)
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
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(3)
(3) A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under
s. 48.91 (3) granting adoption of a child. A petition for termination of parental rights under
s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.
806.07 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 726 (1975);
1975 c. 218;
1997 a. 114.
806.07 Annotation
There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian,
79 Wis. 2d 374,
255 N.W.2d 564 (1977).
806.07 Annotation
A lawyer's failure to answer a complaint due to misplacing a client's papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske,
80 Wis. 2d 64,
257 N.W.2d 865 (1977).
806.07 Annotation
The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to plaintiff's counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan,
81 Wis. 2d 463,
260 N.W.2d 700 (1977).
806.07 Annotation
Section 805.17 (3) does not limit a trial court's discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith,
82 Wis. 2d 667,
264 N.W.2d 239 (1978).
806.07 Annotation
A motion filed over 6 months after the entry of judgment was not filed within a "reasonable time" under sub. (2). Rhodes v. Terry,
91 Wis. 2d 165,
280 N.W.2d 248 (1979).
806.07 Annotation
A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC,
91 Wis. 2d 462,
283 N.W.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 Wis. 2d 407,
284 N.W.2d 674 (1979).
806.07 Annotation
Neglect by both a lawyer and client was not "excusable". Charolais Breeding Ranches v. Wiegel,
92 Wis. 2d 498,
285 N.W.2d 720 (1979).
806.07 Annotation
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Association v. Barkwood Landscaping Co., Inc.
93 Wis. 2d 190,
286 N.W.2d 581 (1980).
806.07 Annotation
Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council,
102 Wis. 2d 521,
307 N.W.2d 322 (Ct. App. 1981).
806.07 Annotation
A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. Wisconsin Public Service Corporation v. Krist,
104 Wis. 2d 381,
311 N.W.2d 624 (1981).
806.07 Annotation
New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R. A. S. v. J. M.
114 Wis. 2d 305,
338 N.W.2d 851 (Ct. App. 1983).
806.07 Annotation
Sub. (1) (h) allows relief even if the claim sounds in par. (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H.
122 Wis. 2d 536,
363 N.W.2d 419 (1985).
806.07 Annotation
The "reasonable time" requirement of sub. (2) does not apply to void judgments. Neyland v. Vorwald,
124 Wis. 2d 85,
368 N.W.2d 648 (1985).
806.07 Annotation
An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc.
145 Wis. 2d 66,
426 N.W.2d 41 (Ct. App. 1988).
806.07 Annotation
An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc.
145 Wis. 2d 66,
426 N.W.2d 41 (Ct. App. 1988).
806.07 Annotation
A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau,
146 Wis. 2d 101,
430 N.W.2d 579 (Ct. App. 1988).
806.07 Annotation
A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson,
157 Wis. 2d 490,
460 N.W.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 sub. (1) (h). Schwochert v. American Family Ins. Co.
166 Wis. 2d 97,
479 N.W.2d 190 (Ct. App. 1991). See also Schwochert v. American Family Insurance Co.
172 Wis. 2d 628,
494 N.W.2d 201 (1992).
806.07 Annotation
A property division may be modified under s. 806.07, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski,
172 Wis. 2d 285,
493 N.W.2d 737 (Ct. App. 1992).
806.07 Annotation
A "reasonable time" to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C.
181 Wis. 2d 618,
511 N.W.2d 868 (Ct. App. 1994).
806.07 Annotation
A bank that failed 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 Wis. 2d 321,
525 N.W.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 while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank,
189 Wis. 2d 321,
525 N.W.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 Wis. 2d 816,
528 N.W.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 Wis. 2d 62,
533 N.W.2d 470 (1995).
806.07 Annotation
The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Manufacturing, Inc. v. Midland Machinery,
205 Wis. 2d 650,
556 N.W.2d 437 (Ct. App. 1996).
806.07 Annotation
An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin,
209 Wis. 2d 72,
561 N.W.2d 810 (Ct. App. 1997).
806.07 Annotation
When the record demonstrates the circuit court's intention to send notice of an order, but it failed to do so and acknowledged the mistake, the court could effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp.
210 Wis. 2d 639,
563 N.W.2d 519 (1997).
806.07 Annotation
To obtain relief under sub. (2) from a judgment obtained as the result of fraud on a court, the complaining party must have responded without inexcusable neglect, which includes unexplained delay in responding to the original action. Dekker v. Wergin,
214 Wis. 2d 17,
570 N.W.2d 861 (Ct. App. 1997).
806.07 Annotation
To vacate a default judgment under sub. (1) (a), the moving party must set forth a meritorious defense, which is a defense good at law that would survive a motion for judgment on the pleadings. J.L. Phillips & Associates v. E& H Plastic Corp.
217 Wis. 2d 348,
577 N.W.2d 13 (1998).
806.07 Annotation
It was error to define inadvertence under sub. (1) (a) so that virtually any failure on the part of an attorney to predict and appreciate the potential collateral legal consequences of his her own proposed settlement language would have been at least in part from inadvertence. Milwaukee Women's Medical Service, Inc. v. Scheidler,
228 Wis. 2d 514,
598 N.W.2d 588 (Ct. App. 1999).
806.07 Annotation
A circuit court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of 806.07 (1) to apply, the court must find that the party opposing the default judgment must have a meritorious defense to the underlying action. Shirk v. Bowling, Inc. 2001 WI 36,
242 Wis. 2d 153,
624 N.W.2d 375.
806.07 Annotation
The existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. A contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. State v. Williams, 2001 WI App 155,
246 Wis. 2d 722,
631 N.W.2d 623.
806.07 Annotation
Orders and judgments subject to this section encompass all the findings of fact and conclusions of law the court makes in arriving at the order or judgment. Estate of Persha, 2002 WI App 113, ___ Wis. 2d ___,
649 N.W.2d 661.
806.07 Annotation
A court may act on its own motion under this section. When it does so, the parties must have notice and the opportunity to be heard. Estate of Persha, 2002 WI App 113, ___ Wis. 2d ___,
649 N.W.2d 661.
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 Wis. 2d 585, 726 (1975); Sup. Ct. Order, 67 Wis. 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 Wis. 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 exact amount 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)(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.
806.10(2)
(2) Whenever any judgment entered in the judgment and lien docket is reversed and the remittitur filed, the clerk of circuit court shall enter "reversed on appeal" on the judgment and lien docket.
806.10(3)
(3) Every clerk of circuit court who enters a judgment or decree and enters upon the judgment and lien docket a date or time other than that of its actual entry or neglects to enter the same at the proper time shall be liable to the party injured.
806.10 Annotation
Neglect to docket a judgment at the proper time under sub. (3) means to neglect to enter judgment immediately upon the entry of the judgment. An action against a clerk of court for incorrectly docketing a judgment under sub. (3) is subject to the 6-year statute of limitations under s. 893.93 (1) (a). South Milwaukee Savings Bank v. Barrett, 2000 WI 48,
234 Wis. 2d 733,
611 N.W.2d 448.
806.11
806.11
Delinquent income or franchise tax lien. 806.11(1)
(1) At the time of filing the warrant provided by
s. 71.74 (14) or
71.91 (5), the clerk of circuit court shall enter the warrant in the judgment and lien docket, including:
806.11(1)(a)
(a) The name of each delinquent income or franchise tax debtor, with place of residence if it is stated in the warrant.
806.11(1)(d)
(d) The amount of delinquent income or franchise taxes with interest, penalties and costs as set forth in the warrant.
806.11(2)
(2) If a warrant provided by
s. 71.74 (14) or
71.91 (5) is against several persons, the warrant shall be entered, in accordance with the procedure under
sub. (1), in the judgment and lien docket under the name of each person against whom the warrant was issued.
806.115
806.115
Filing of duplicate copy of warrant. The department of revenue may file in any county a duplicate copy of a warrant filed under
s. 71.74 (14) or
71.91 (5) and the clerk of circuit court shall enter the duplicate copy on the judgment and lien docket as provided in
s. 806.11. When so entered, the duplicate copy shall have the same legal effect as the warrant filed under
s. 71.91 (5).
806.12
806.12
Transcript of municipal judge's judgment. 806.12(1)(1) The clerk of circuit court shall, upon the production of a duly certified transcript of a judgment for more than $10, exclusive of costs, rendered by any municipal judge in the county, enter the judgment in the judgment and lien docket of the court in the manner prescribed in
s. 806.10. When the transcript shows that execution was stayed in the municipal court, with the name of the surety thereof, the clerk of circuit court shall enter the judgment against the surety as well as the judgment debtor, and the surety shall be bound thereby as a judgment debtor and the surety's property shall be subject to lien and be liable on the lien to the same extent as the surety's principal.