CHAPTER 808
APPEALS AND WRITS OF ERROR
808.03 Appeals to the court of appeals.
808.04 Time for appeal to the court of appeals.
808.07 Relief pending appeal.
808.075 Permitted court actions pending appeal.
808.08 Further proceedings in trial court.
808.09 Reversal, affirmance or modification of judgment.
808.10 Review by the supreme court.
808.11 Printing specifications.
808.01
808.01
Definitions. In this chapter:
808.01(1)
(1) "Appeal" means a review in an appellate court by appeal or writ of error authorized by law of a judgment or order of a circuit court.
808.01(2)
(2) "Appellate court" means the supreme court under
ch. 751 or the court of appeals under
ch. 752.
808.01 History
History: 1977 c. 187;
1991 a. 189.
808.01 Annotation
A party which accepts the benefits of a judgment does not waive the right to take an appeal which does not involve a reversal of that part of the judgment under which the benefit was received. Estreen v. Bluhm, 79 W (2d) 142, 255 NW (2d) 473.
808.02
808.02
Writ of error. A writ of error may be sought in the court of appeals.
808.02 History
History: 1977 c. 187.
808.03
808.03
Appeals to the court of appeals. 808.03(1)
(1)
Appeals as of right. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition [court record] that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of following:
808.03 Note
NOTE: The bracketed language inserted by
1995 Wis. Act 224 was rendered superfluous by the treatment of this provision by
1995 Wis. Act 139. Corrective legislation is pending.
808.03(1)(c)
(c) Recorded in docket entries in traffic regulation cases prosecuted in circuit court if a person convicted of a violation may be ordered to pay a forfeiture.
808.03(1)(d)
(d) Recorded in docket entries in municipal ordinance violation cases prosecuted in circuit court.
808.03(2)
(2) Appeals by permission. A judgment or order not appealable as a matter of right under
sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
808.03(2)(a)
(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;
808.03(2)(b)
(b) Protect the petitioner from substantial or irreparable injury; or
808.03(2)(c)
(c) Clarify an issue of general importance in the administration of justice.
808.03 History
History: 1977 c. 187;
1979 c. 192; Sup. Ct. Order, 130 W (2d) xix (1986);
1995 a. 139,
224; s. 13.93 (2) (c).
808.03 Annotation
Cross-reference. See s. 767.15 (2) for appeals involving child support and maintenance.
808.03 Note
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]
808.03 Annotation
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).
808.03 Annotation
See note to 805.15, citing Earl v. Marcus, 92 W (2d) 13, 284 NW (2d) 690 (Ct. App. 1979).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
See note to 974.05, citing State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
808.03 Annotation
See note to 801.08, citing Heaton v. Independent Mortuary Corp. 97 W (2d) 379, 294 NW (2d) 15 (1980).
808.03 Annotation
Orders relating to venue are appealable by permission under (2). Aparacor, Inc. v. DILHR, 97 W (2d) 399, 293 NW (2d) 545 (1980).
808.03 Annotation
See note to 801.08, citing Grulkowski v. Dept. of Transp. 97 W (2d) 615, 294 NW (2d) 43 (Ct. App. 1980).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
Order for new trial is not appealable as of right. Wick v. Mueller, 105 W (2d) 191, 313 NW (2d) 799 (1982).
808.03 Annotation
See note to 806.06, citing Radoff v. Red Owl Stores, Inc. 109 W (2d) 490, 326 NW (2d) 240 (1982).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
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).
808.03 Annotation
See note to 343.305 citing State v. Borowski, 164 W (2d) 730, 476 NW (2d) 316 (Ct. App. 1991).
808.03 Annotation
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).
808.03 Annotation
Wisconsin Court of Appeals Appellate Jurisdiction. Klein and Leavell. Wis. Law. Sept. 1991.
808.03 Annotation
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
808.04
808.04
Time for appeal to the court of appeals. 808.04(1)
(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.
808.04(2)
(2) An appeal under
s. 227.60 or
799.445 shall be initiated within 15 days after entry of judgment or order appealed from.
808.04(3)
(3) Except as provided in
subs. (4) and
(7), an appeal in a criminal case or a case under
ch. 48,
51,
55 or
938 shall be initiated within the time period specified in
s. 809.30.
808.04(4)
(4) 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 or
938 shall be initiated within 45 days of entry of the judgment or order appealed from.
808.04(5)
(5) 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.
808.04(6)
(6) 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).
808.04(7)
(7) 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.
808.04(7m)
(7m) 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.
808.04(8)
(8) 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.
808.04 History
History: 1977 c. 187;
1979 c. 32 s.
92 (9), (14);
1979 c. 89,
221;
1981 c. 152;
1981 c. 314 ss.
130,
146;
1983 a. 183,
219;
1983 a. 491 s.
23;
1985 a. 182 s.
57; Sup. Ct. Order, 130 W (2d) xi, xix (1986); Sup. Ct. Order, 136 W (2d) xxv (1987);
1989 a. 56 s.
259;
1989 a. 192;
1991 a. 39; Sup. Ct. Order, 168 W (2d) xix (1992);
1993 a. 395;
1995 a. 77,
275.
808.04 Cross-reference
Cross-reference: See s.
809.50 for time to file permissive appeals.
808.04 Note
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]
808.04 Note
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]
808.04 Annotation
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).
808.04 Annotation
See note to 799.24, citing Mock v. Czemierys, 113 W (2d) 207, 336 NW (2d) 188 (Ct. App. 1983).
808.04 Annotation
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).
808.04 Annotation
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).
808.04 Annotation
See note to 785.03, citing Matter of Contempt in State v. Simmons, 150 W (2d) 178, 441 NW (2d) 308 (Ct. App. 1989).
808.04 Annotation
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).
808.04 Annotation
See note to 805.17 citing Salzman v. DNR, 168 W (2d) 523, 484 NW (2d) 337 (Ct. App. 1992).
808.04 Annotation
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).
808.05
808.05
Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:
808.05(1)
(1) It grants direct review upon a petition to bypass filed by a party;
808.05(2)
(2) It grants direct review upon certification from the court of appeals prior to the court of appeals hearing and deciding the matter; or
808.05(3)
(3) It, on its own motion, decides to review the matter directly.
