1995 Chapter 806

806.02(3)(b) (b) Where no personal claim is made against the defendant, the court shall require such proofs, by affidavit or otherwise, as are necessary to show the court's jurisdiction has been invoked over the status, property or thing which is the subject of the action. The court may require such additional proof as the interests of justice require.

806.02(4) (4) In an action on express contract for recovery of a liquidated amount of money only, the plaintiff may file with the clerk proof of personal service of the summons on one or more of the defendants and an affidavit that the defendant is in default for failure to join issue. The clerk shall render and enter judgment against the defendants who are in default for the amount demanded in the complaint. Leaving the summons at the abode of a defendant is not personal service within the meaning of this subsection.

806.02(5) (5) A default judgment may be rendered against any defendant who has appeared in the action but who fails to appear at trial. If proof of any fact is necessary for the court to render judgment, the court shall receive the proof.

806.02 History History: Sup. Ct. Order, 67 W (2d) 585, 716 (1975); Sup. Ct. Order, 73 W (2d) xxxi (1976); Sup. Ct. Order, 82 W (2d) ix (1978); Sup. Ct. Order, 101 W (2d) xi (1981); Sup. Ct. Order, 109 W (2d) xiii (1982); 1987 a. 256.

806.02 Annotation Cross-references: For time required for notice under (2), see s. 801.15 (4).

806.02 Annotation See 802.06 (1) for provision giving the state 45 days to respond to a complaint or counterclaim.

806.02 Note Judicial Council Committee's Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]

806.02 Note Judicial Council Committee's Note, 1977: Sub. (5) has been modified to allow a judge in a default judgment matter to receive rather than mandatorily hear the proof of any fact necessary for a court to render judgment. This change allows a judge the option of in-chamber consideration of affidavits presented by attorneys. Under the present language the time of the judge may be taken up in open court hearing proof presented by the attorney orally whereas proof submitted by the attorney in the form of affidavits may be just as competent and trustworthy. Under the new language, the judge still retains the option of hearing proof in open court of any fact necessary to render a default judgment. [Re Order effective July 1, 1978]

806.02 Note Judicial Council Note, 1981: Sub. (2) is amended to allow the court to receive proof of facts necessary for default judgment by affidavit rather than hearing. An analogous change was made in sub. (5) in 1977 for the same reasons. [Re Order effective July 1, 1981]

806.02 Note Judicial Council Note, 1982: Sub. (4) is amended by eliminating the requirement that the plaintiff file the complaint in order to receive a default judgment. The complaint will already have been filed with the court when the action was commenced, prior to service of the summons. Sec. 801.02 (1). [Re Order effective Jan. 1, 1983]

806.02 Annotation See notes to s. 806.07 for decisions relating to the vacation default judgments.

806.02 Annotation Trial court properly granted default judgment against party failing to appear at scheduling conference. Damage amount, however, was not supported by record. Gaertner v. 880 Corp., 131 W (2d) 492, 389 NW (2d) 59 (Ct. App. 1986).

806.02 Annotation Where plaintiff's complaint did not contain a specific damage claim, plaintiff's failure to serve an affidavit setting forth the amount of its claimed damages was grounds for reversing the default judgment. In a default judgement only the damages demanded may be awarded. Stein v. Illinois State Assistance Commission, 194 W (2d) 775, 535 NW (2d) 101 (Ct. App. 1995).

806.02 Annotation A trial court in its discretion may deny a default judgment where it determines that it would reopen the case under s. 806.07. Johns v. County of Oneida, 201 W (2d) 600, 549 NW (2d) 269 (Ct. App. 1996).

806.03 806.03  Judgment on admitted claim; order to satisfy. In an action on an express contract for the recovery of a liquidated sum of money only, if the answer admits any part of the plaintiff's claim or if the answer sets up a counterclaim for an amount less than the plaintiff's claim and contains no other defense to the action, the clerk, on motion of the plaintiff, shall render and enter judgment for the amount so admitted or for the amount claimed in the complaint less the amount of the defendant's counterclaim. When the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order the defendant to satisfy that part of the claim and may enforce the order as it enforces a judgment or provisional remedy.

806.03 History History: Sup. Ct. Order, 67 W (2d) 585, 718 (1975); Sup. Ct. Order, 73 W (2d) xxxi (1976).

806.03 Note Judicial Council Committee's Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]

806.04 806.04  Uniform declaratory judgments act.

806.04(1) (1)  Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03 (1).

806.04(2) (2) Power to construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.

806.04(3) (3) Before breach. A contract may be construed either before or after there has been a breach thereof.

806.04(4) (4) Representatives, etc. Any person interested as or through a personal representative, executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, mental incompetent or insolvent, may have a declaration of rights or legal relations in respect thereto:

806.04(4)(a) (a) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

806.04(4)(b) (b) To direct the personal representatives, executors, administrators or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

806.04(4)(c) (c) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

806.04(5) (5) Enumeration not exclusive. The enumeration in subs. (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in sub. (1) in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

806.04(6) (6) Discretionary. The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

806.04(7) (7) Review. All orders, judgments and decrees under this section may be reviewed as other orders, judgments and decrees.

806.04(8) (8) Supplemental relief. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

806.04(9) (9) Jury trial. When a proceeding under this section involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

806.04(10) (10) Costs. In any proceeding under this section the court may make such award of costs as may seem equitable and just.

806.04(11) (11) Parties. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration may prejudice the right of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard. If a statute, ordinance or franchise is alleged to be unconstitutional, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard. In any proceeding under this section in which the constitutionality, construction or application of any provision of ch. 227, or of any statute allowing a legislative committee to suspend, or to delay or prevent the adoption of, a rule as defined in s. 227.01 (13) is placed in issue by the parties, the joint committee for review of administrative rules shall be served with a copy of the petition and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard. In any proceeding under this section in which the constitutionality, construction or application of any provision of ch. 13, 20, 111, 227 or 230 or subch. I, III or IV of ch. 16 or s. 753.075, or of any statute allowing a legislative committee to suspend, or to delay or prevent the adoption of, a rule as defined in s. 227.01 (13) is placed in issue by the parties, the joint committee on legislative organization shall be served with a copy of the petition and the joint committee on legislative organization, the senate committee on organization or the assembly committee on organization may intervene as a party to the proceedings and be heard.

806.04(12) (12) Construction. This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

806.04(13) (13) Words construed. The word "person" wherever used in this section, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.

806.04(14) (14) Provisions severable. The several subsections and provisions of this section except subs. (1) and (2) are declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the statute invalid or inoperative.

806.04(15) (15) Uniformity of interpretation. This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.

806.04(16) (16) Short title. This section may be cited as the "Uniform Declaratory Judgments Act".

806.04 History History: Sup. Ct. Order, 67 W (2d) 585, 718 (1975); 1975 c. 218; Sup. Ct. Order, 82 W (2d) ix (1978); 1977 c. 449; 1979 c. 38, 89, 175; 1979 c. 330 s. 13; 1979 c. 352, 355; 1981 c. 96 s. 67; 1981 c. 187 s. 10; 1981 c. 390 s. 252; 1983 a. 255 s. 6; 1985 a. 182 s. 57, Sup. Ct. Order, 166 W (2d) xix (1992).

806.04 Note Judicial Council Committee's Note, 1977: Sub. (3m), as created by ch. 263, laws of 1973, is added. Sub. (3m), which was created during the time the rules of civil procedure were in the process of being adopted, was inadvertently not included in new s. 806.04 along with the other provisions of former s. 269.56. The only intent of the Judicial Council during the preparation of the Rules of Civil Procedure in regard to old s. 269.56 was to renumber it to s. 806.04. [Re Order effective July 1, 1978]

806.04 Note Judicial Council Note, 1991: Sub. (1) is amended to clarify that a declaratory judgment is not appealable as of right unless it disposes of the entire matter in litigation as to one or more of the parties. [Re Order effective July 1, 1992]

806.04 Annotation An action for declaratory judgment will not lie to define a law enforcement officer's right to demand that a doctor take a blood sample for an intoxication test where the complaint cites no statute under which the doctor is threatened with prosecution and where various facts might affect the rights of the person from whom blood is to be drawn. Waukesha Memorial Hospital v. Baird, 45 W (2d) 629, 173 NW (2d) 700.

806.04 Annotation While in most cases a court may not know a declaratory judgment would not terminate a controversy giving rise to the proceeding until it had heard the evidence, a court need not go through trial to arrive at a foregone conclusion when it appears on the face of the complaint a declaratory judgment would not terminate the controversy. (Language in Miller v. Currie, 208 Wis. 199, intimating otherwise, is modified in accordance herewith.) American Med. S. Inc. v. Mutual Fed. S. & L. 52 W (2d) 198, 188 NW (2d) 529.

806.04 Annotation Sub. (5) qualifies the specific powers enumerated in subs. (2), (3) and (4) as well as sub. (1) and the discretionary power in sub. (6) applies to all cases. Even if a complaint states a cause of action for declaratory relief it may be dismissed if a declaratory judgment would not terminate the controversy. American Med. S. Inc. v. Mutual Fed. S. & L. 52 W (2d) 198, 188 NW (2d) 529.

806.04 Annotation In a suit for declaratory judgment the complaint should not be dismissed when the judgment declares the rights on the complaint or the merits are decided; dismissal is proper when for a valid reason the merits are not reached and the suit should not be entertained. Kenosha v. Unified School Dist. No. 1, 55 W (2d) 642, 201 NW (2d) 66.

806.04 Annotation A complaint alleging that the insurance commissioner is threatening action against an insurance agent who also contracts to service employe welfare funds, claiming a violation of 211.14 (2) (a), Stats. 1969, states a valid basis for declaratory judgment as against a demurrer. Pension Management, Inc. v. DuRose, 58 W (2d) 122, 205 NW (2d) 553.

806.04 Annotation In a complaint of putative father, challenge to the propriety of seeking declaratory relief is not sustained because the relief sought falls within the broad scope of declaratory judgment jurisdiction, meets the 4 requisites for its invocation, and a judgment entered herein will terminate the controversy. Slawek v. Stroh, 62 W (2d) 295, 215 NW (2d) 9.

806.04 Annotation Plaintiffs-taxpayers have standing to challenge constitutionality of county assessor statute. Thompson v. Kenosha County, 64 W (2d) 673, 221 NW (2d) 845.

806.04 Annotation Request by the employer for declaratory judgment cannot be entertained because the purpose of the statute was to expedite justice and to avoid long and complicated litigation, not to interrupt legal proceedings presently in operation. State v. WERC, 65 W (2d) 624, 223 NW (2d) 543.

806.04 Annotation Service of a copy of the proceedings upon the attorney general under (11) is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance. Bollhoffer v. Wolke, 66 W (2d) 141, 223 NW (2d) 902.

806.04 Annotation Sustaining of the demurrer was also proper with respect to plaintiffs' attempt via declaratory judgment to effect dissolution of a subdivision corporation where: (1) The determination of the corporation's right to exist would affect members thereof not before the court as parties; (2) sub. (11) requires that all persons who "would be affected by the declaration" shall be made parties; and (3) a corporation may only be dissolved by voluntary act of its shareholders or involuntary proceedings initiated by the attorney general. Rudolph v. Indian Hills Estates, Inc. 68 W (2d) 768, 229 NW (2d) 671.

806.04 Annotation Hospitals are "direct objects" of 70.11 (4m) for purposes of standing to bring declaratory judgment action seeking tax exemption for medical equipment leased by hospital from commercial lessor. Madison Gen. Hosp. Asso. v. City of Madison, 71 W (2d) 259, 237 NW (2d) 750.

806.04 Annotation Declaratory judgments discussed. State ex rel. Lynch v. Conta, 71 W (2d) 662, 239 NW (2d) 313.

806.04 Annotation Discussion of the use of the declaratory judgment act against the state, agencies and officers. Lister v. Bds. of Regents, 72 W (2d) 282, 240 NW (2d) 610.

806.04 Annotation In declaratory judgment action by taxpayers against school board, legal conclusions in complaint challenging constitutionality of taxing statute were permissible. Declaratory judgment actions discussed. Tooley v. O'Connell, 77 W (2d) 422, 253 NW (2d) 335.

806.04 Annotation Service on the attorney general is a jurisdictional prerequisite under (11) even when the constitutional issue is collateral to or a preliminary step in the determination of rights sought to be declared. O'Connell v. Bd. of Ed., Jt. Dist. #10, 82 W (2d) 728, 264 NW (2d) 561.

806.04 Annotation Service under (11) on attorney general is timely if made in time to permit defense against claim of unconstitutionality. Town of Walworth v. Fontana-on-Geneva Lake, 85 W (2d) 432, 270 NW (2d) 442 (Ct. App. 1978).

806.04 Annotation Where constitutionality of statute is challenged in action other than declaratory judgment action, attorney general must be served but failure to do so at trial level was cured by service at appellate level. In Matter of Estate of Fessler, 100 W (2d) 437, 302 NW (2d) 414 (1981).

806.04 Annotation Trial court did not abuse discretion by declaring rights which would be created if a proposed release agreement were executed. Loy v. Bunderson, 107 W (2d) 400, 320 NW (2d) 175 (1982).

806.04 Annotation Attorney's fees are not recoverable as "costs" under (10). Kremers-Urban Co. v. American Employers Ins. 119 W (2d) 722, 351 NW (2d) 156 (1984).

806.04 Annotation Under (11) plaintiff must serve JCRAR within 60 days pursuant to 893.02. Richards v. Young, 150 W (2d) 549, 441 NW (2d) 742 (1989).

806.04 Annotation Discussion of standing requirement. Weber v. Town of Lincoln, 159 W (2d) 144, 463 NW (2d) 869 (Ct. App. 1990).

806.04 Annotation Facts or conditions necessary for declaratory relief listed and discussed. Miller Brands-Milwaukee v. Case, 162 W (2d) 684, 470 NW (2d) 290 (1991).

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) (1) 

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).