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 (3) and (4) are amended by removing references to a repealed statute.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.
808.05 History History: 1977 c. 187.
808.07 808.07 Relief pending appeal.
808.07(1) (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.
808.07(2) (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:
808.07(2)(a)1. 1. Stay execution or enforcement of a judgment or order;
808.07(2)(a)2. 2. Suspend, modify, restore or grant an injunction; or
808.07(2)(a)3. 3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
808.07(2)(am) (am) During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07.
808.07(2)(b) (b) 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.
808.07(3) (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.
808.07(4) (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.
808.07(5) (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.
808.07(6) (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.
808.07 History History: 1977 c. 187; 1979 c. 32; 1979 c. 110 s. 60 (9); 1983 a. 158, 219; 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]
808.07 Annotation 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).
808.07 Annotation 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).
808.075 808.075 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), 805.15, 805.16, 805.17 (3), 806.07, 806.08, 806.15 (2), 806.24 (4), 808.07 (1) and (2) and 809.12.
808.075(2) (2) 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) and (4).
808.075(3) (3) 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) and (4).
808.075(4) (4) The circuit court may act as to the following despite the pendency of an appeal:
808.075(4)(a) (a) In a case under ch. 48:
808.075(4)(a)1. 1. Review of actions by a guardian under s. 48.023.
808.075(4)(a)2. 2. Review of nonsecure custody orders under s. 48.207.
808.075(4)(a)3. 3. Review of secure detention orders under s. 48.208 and secure detention status reviews under s. 48.209 (1) (e).
808.075(4)(a)4. 4. Hearing for child held in custody under s. 48.21.
808.075(4)(a)5. 5. Hearing upon involuntary removal under s. 48.305.
808.075(4)(a)6. 6. Revision of dispositional order under s. 48.363.
808.075(4)(a)7. 7. Extension of dispositional order under s. 48.365, unless s. 48.368 applies.
808.075(4)(a)8. 8. Review of permanency plan under s. 48.38 (5).
808.075(4)(a)9. 9. Release of confidential information under s. 48.396 or 48.78.
808.075(4)(a)10. 10. Revision of guardianship order under s. 48.977 (6).
808.075(4)(a)11. 11. Termination of guardianship under s. 48.977 (7), including removal of a guardian.
808.075(4)(b) (b) In a case under ch. 51:
808.075(4)(b)1. 1. Disposition, modification and extension of commitment under s. 51.20 (13).
808.075(4)(b)2. 2. Reexamination of commitment under s. 51.20 (16).
808.075(4)(b)3. 3. Enforcement of patient rights under s. 51.61.
808.075(4)(b)4. 4. Commitment, conditional release, recommitment and discharge under s. 971.17 of a person found not guilty by reason of mental disease or defect.
808.075(4)(c) (c) In a case under ch. 55:
808.075(4)(c)1. 1. Review, modification or termination of protective placement under s. 55.06 (10).
808.075(4)(c)2. 2. Hearing required upon transfer under s. 55.06 (9).
808.075(4)(c)3. 3. Enforcement of patient's rights under s. 55.07.
808.075(4)(d) (d) In a case under ch. 767:
808.075(4)(d)1. 1. Revision of orders for legal custody or periods of physical placement under s. 767.24, 767.325, 767.327 or 767.329.
808.075(4)(d)2. 2. Issuance or modification of orders for visitation rights under s. 767.245.
808.075(4)(d)3. 3. Annual adjustment of child support under s. 767.33.
808.075(4)(d)4. 4. Revision of judgment or order for child support, maintenance payments or family support payments under s. 767.32 or 767.51.
808.075(4)(d)5. 5. Order for temporary maintenance, temporary child support or for suit money, counsel fees and disbursements in the appellate court under s. 767.39.
808.075(4)(d)6. 6. Property division, where the court has expressly or impliedly reserved jurisdiction, provided the court does not revise or modify its final division of property.
808.075(4)(d)7. 7. Vacation or modification of judgment under s. 767.37 (2).
808.075(4)(d)8. 8. Revocation of judgment under s. 767.38.
808.075(4)(d)9. 9. Enforcement of payments under s. 767.30 or 767.51.
808.075(4)(d)10. 10. Enforcement of orders under s. 767.305 or 767.51.
808.075(4)(d)11. 11. Enforcement or modification of assignments under s. 767.25 (4m), 767.265 or 767.51 (3m).
808.075(4)(d)12. 12. Enforcement or modification of account transfers under s. 767.267.
808.075(4)(d)13. 13. Determination of arrearages under s. 767.293.
808.075(4)(e) (e) In a case under chs. 701 or 853 to 879:
808.075(4)(e)1. 1. Any matter, unless the appellate court directs the trial court not to act on specific issues or the trial court declines to act because the matter directly affects the issues on appeal.
808.075(4)(f) (f) In a case under ch. 880:
808.075(4)(f)1. 1. Review a bond under s. 880.125, 880.13 or 880.60 (9).
808.075(4)(f)2. 2. Release of deposited funds under s. 880.13 (2) (b).
808.075(4)(f)3. 3. Order for visitation under s. 880.155.
808.075(4)(f)4. 4. Appointment of successor guardian under s. 880.17 (1).
808.075(4)(f)5. 5. Approval of guardian's exercise of marital property rights under s. 880.173.
808.075(4)(f)6. 6. Approval of management of property under s. 880.19.
808.075(4)(f)7. 7. Direction for use of estate for benefit of wards under s. 880.21.
808.075(4)(f)8. 8. Examination of annual accounts and assets under s. 880.25.
808.075(4)(f)9. 9. Removal of guardian under s. 880.251.
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