893.13 Annotation
Sub. (3) would apply when, for example, an action was commenced when the period of limitation has only 5 days left to run. The running of the period of limitation is tolled for the period from commencement of the action until the day of its final disposition, such as dismissal of the action based on the pleadings. A 30-day period is then provided (rather than the 5 days left on the original period of limitation) in order to provide a reasonable time for a party to consider whether to recommence the action. [Bill 326-A]
893.13 Annotation
This section does not toll the statute to allow an independent claim by an insurer. It simply insures that the joinder of constituent parts of a cause of action, during the pendency of the action, is not frustrated by the application of the appropriate statute of limitations. Aetna Casualty & Surety Co. v. Owens, 191 W (2d) 745, 530 NW (2d) 51 (Ct. App. 1995).
893.13 Annotation
The filing of an action subsequently voluntarily dismissed tolls the statute of limitations under sub. (2) for the period specified in sub. (1) for cases where no appeal is taken. Johnson v. County of Crawford, 195 W (2d) 374, 536 NW (2d) 167 (Ct. App. 1995).
893.13 Annotation
Filing suit prior to expiration of 120-day period or denial of claim is not truly commenced and does not toll the statute of limitations when filed. Colby v. Columbia County, 202 W (2d) 342, 550 NW (2d) 124 (1996).
893.135
893.135
Tolling of statute of limitations for marital property agreements. Any statute of limitations applicable to an action to enforce a marital property agreement under
ch. 766 is tolled as provided under
s. 766.58 (13).
893.135 History
History: 1985 a. 37;
1987 a. 393.
893.137
893.137
Tolling of statute of limitations for certain time-share actions. Any statute of limitations affecting the right of an association organized under
s. 707.30 (2) or a time-share owner, as defined in
s. 707.02 (31), against a developer, as defined in
s. 707.02 (11), is tolled as provided in
s. 707.34 (1) (bm).
893.137 History
History: 1987 a. 399.
893.14
893.14
Limitation on use of a right of action as a defense or counterclaim. Unless otherwise specifically prescribed by law, the period within which a cause of action may be used as a defense or counterclaim is computed from the time of the accrual of the cause of action until the time that the plaintiff commences the action in which the defense or counterclaim is made. A law limiting the time for commencement of an action is tolled by the assertion of the defense or the commencement of the counterclaim until final disposition of the defense or counterclaim. If a period of limitation is tolled under this section and the time remaining after final disposition in which an action may be commenced is less than 30 days, the period within which the action may be commenced is extended to 30 days from the date of final disposition.
893.14 History
History: 1979 c. 323.
893.14 Note
Judicial Council Committee's Note, 1979: This section is based upon previous ss. 893.48 and 893.49. The section provides, however, that a statute of limitations is tolled only from the assertion of the defense or counterclaim until the final disposition of the defense or counterclaim. Under previous s. 893.49 a statute of limitations was tolled from the commencement of the action in which the defense or counterclaim was asserted until the termination of the action. [Bill 326-A]
893.15
893.15
Effect of an action in a non-Wisconsin forum on a Wisconsin cause of action. 893.15(1)
(1) In this section "a non-Wisconsin forum" means all courts, state and federal, in states other than this state and federal courts in this state.
893.15(2)
(2) In a non-Wisconsin forum, the time of commencement or final disposition of an action is determined by the local law of the forum.
893.15(3)
(3) A Wisconsin law limiting the time for commencement of an action on a Wisconsin cause of action is tolled from the period of commencement of the action in a non-Wisconsin forum until the time of its final disposition in that forum.
893.15(4)
(4) Subsection (3) does not apply to an action commenced on a Wisconsin cause of action in a non-Wisconsin forum after the time when the action is barred by a law of the forum limiting the time for commencement of an action.
893.15(5)
(5) If an action is commenced in a non-Wisconsin forum on a Wisconsin cause of action after the time when the Wisconsin period of limitation has expired but before the foreign period of limitation has expired, the action in the non-Wisconsin forum has no effect on the Wisconsin period of limitation.
893.15 History
History: 1979 c. 323.
893.15 Note
Judicial Council Committee's Note, 1979: Sub. (1) defines the term "a non-Wisconsin forum". "State" is defined in s. 990.01 (40) to include the District of Columbia, Puerto Rico, and territories of the United States.
893.15 Annotation
Sub. (2) determines the commencement and termination of an action in a non-Wisconsin forum by the law of that forum. "Local law" is referred to so that the non-Wisconsin court determining the commencement of an action in, for example, Illinois will use Illinois law, not including any other law which an Illinois court might use under a choice of law theory.
893.15 Annotation
Sub. (3) applies the tolling effect of Wisconsin statutes to actions on Wisconsin causes of action brought in federal courts in Wisconsin and to all other courts, state and federal, in the United States.
893.15 Annotation
Sub. (4) prevents the commencement of an action in a forum whose statute of limitations has run from extending the Wisconsin tolling period.
893.15 Annotation
Sub. (5) prevents the maintenance of an action in a non-Wisconsin forum from extending a Wisconsin statute of limitations. [Bill 326-A]
893.16
893.16
Person under disability. 893.16(1)
(1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or insane, or imprisoned on a criminal charge the action may be commenced within 2 years after the disability ceases, except that where the disability is due to insanity or imprisonment, the period of limitation prescribed in this chapter may not be extended for more than 5 years.
893.16(2)
(2) Subsection (1) does not shorten a period of limitation otherwise prescribed.
893.16(3)
(3) A disability does not exist, for the purposes of this section, unless it existed when the cause of action accrues.
893.16(4)
(4) When 2 or more disabilities coexist at the time the cause of action accrues, the 2-year period specified in
sub. (1) does not begin until they all are removed.
893.16(5)
(5) This section applies only to statutes in this chapter limiting the time for commencement of an action or assertion of a defense or counterclaim except it does not apply to:
893.16(5)(a)
(a) Actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for escape;
893.16(5)(c)
(c) A cause of action which accrues prior to July 1, 1980.
893.16 History
History: 1979 c. 323.
893.16 Note
Judicial Council Committee's Note, 1979: This section is based on present ss. 893.135, 893.33, 893.37 and 893.38. Previous ss. 893.135 and 893.33 stated that the time of disability is not counted as the running of a statute of limitation and further stated that an action could be brought within a specified time after the disability ceased. This is inherently inconsistent and is replaced in s. 893.16 by the simple provision that the action may be commenced within 2 years after the disability ceases. Changes from previous s. 893.135 are:
893.16 Annotation
(a) The period within which to sue after the period of disability ends is reduced from 5 years to 2 years.
893.16 Annotation
(b) The maximum extension time available to those under disability of insanity or imprisonment is limited to 5 years. This means that such individuals must sue within 5 years after the basic applicable statute of limitations would have run against one not under disability, or within 2 years after the disability ends, whichever period is shorter.
893.16 Annotation
(c) The phrase in previous s. 893.135, "at the time such title shall first descend or accrue" is changed to "at the time the cause of action accrues," and this is reinforced by subsection (3). Despite appearances, this represents no change in substance because of the decision in Swearingen v. Roberts, 39 Wis. 462 (1876).
893.16 Annotation
Other changes include:
893.16 Annotation
(a) A specific provision provides that no limitation period is shortened by the application of this section. This represents no substantive change.
893.16 Annotation
(b) In view of the 5-year extension provision reasons for excluding those imprisoned for life from the benefits of the disability provision disappear and the exclusion has been dropped.
893.16 Annotation
(c) The period within which to sue provided in previous s. 893.33 has been increased from one year to 2 years.
893.16 Annotation
To illustrate some of the effects of these revisions:
893.16 Annotation
(a) If a statute of limitation has run on a cause of action of a minor for a personal injury the minor would have one year to commence an action after attaining age 18 under previous s. 893.33. Under s. 893.16 the minor has 2 years to commence an action after attaining age 18.
893.16 Annotation
(b) If a minor has a cause of action affecting title to real estate and the statute of limitation has run the minor has 5 years to commence an action after attaining age 18 under previous s. 893.135. Under s. 893.16 the minor has 2 years to commence the action. [Bill 326-A]
893.16 Annotation
Sub. (1) is effective to toll running of statute of limitation even where, pursuant to 893.07, plaintiff would be barred from bringing suit under applicable foreign law. Scott v. First State Ins. Co., 155 W (2d) 608, 456 NW (2d) 312 (1990).
893.16 Annotation
If a party wishes the benefit of the disability tolling statute, then the party does not get the benefit of the discovery rule. Kilaab v. Prudential Insurance Co. 198 W (2d) 700, 543 NW (2d) 538 (Ct. App. 1995).
893.16 Annotation
Prisoner is entitled to tolling provision under (1) when bringing 42 USC 1983 action. Hardin v. Straub, 490 US 536, 104 LEd 2d 582 (1989).
893.17
893.17
Transition; limitation if disability exists; temporary. 893.17(1)(1) This section does not apply to a cause of action which accrues on or after July 1, 1980.
893.17(2)
(2) If a person entitled to commence any action for the recovery of real property or to make an entry or defense founded on the title to real property or to rents or services out of the same is, at the time such title shall first descend or accrue, either: within the age of 18 years; or insane; or imprisoned on a criminal charge or in execution upon conviction of a criminal offense, for a term less than for life, the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action or the making of such entry or defense; but such action may be commenced or entry or defense made, after the time limited and within 5 years after the disability shall cease or after the death of the person entitled, who shall die under such disability; but such action shall not be commenced or entry or defense made after that period.
893.17 History
History: 1971 c. 213 s.
5;
1979 c. 323.
893.17 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.135 of the statutes renumbered for more logical placement into restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action for recovery of real property or to make an entry or defense founded on the title to real property or to its rents or services which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which accrue on or after July 1, 1980. [Bill 326-A]
893.18
893.18
Transition; persons under disability. 893.18(2)
(2) If a person entitled to bring an action mentioned in this chapter, except actions for the recovery of a penalty or forfeiture or against a sheriff or other officer for an escape, or for the recovery of real property or the possession thereof is, at the time the cause of action accrued, either
893.18(2)(a)
(a) Within the age of 18 years, except for actions against health care providers; or
893.18(2)(c)
(c) Imprisoned on a criminal charge or in execution under sentence of a criminal court for a term less than life, the time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended more than 5 years by any such disability, except infancy; nor can it be so extended in any case longer than one year after the disability ceases.
893.18(3)
(3) A disability does not exist, for the purpose of this section, unless it existed when the cause of action accrued.
893.18(4)
(4) When 2 or more disabilities coexist at the time the cause of action accrues the period of limitation does not attach until they all are removed.
893.18 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.33 of the statutes renumbered for more logical placement in restructured ch. 893 and amended to make its disability provisions applicable only to a cause of action which accrues prior to July 1, 1980. The general disability provisions in s. 893.16 applicable to all statutes of limitation in ch. 893 apply to all causes of action which occur on or after July 1, 1980. [Bill 326-A]
893.18 Annotation
Because parents' claim arising from injury to minor child was filed along with child's claim within time period for child's claim, parents' claim was not barred by 893.54. Korth v. American Family Ins. Co., 115 W (2d) 326, 340 NW (2d) 494 (1983).
893.18 Annotation
Parent's claim for negligent infliction of emotional distress arising from same act as child's injury benefits from the child's tolling period. Jendrzjek v. Tschopp-Durch-Camastral, 755 F Supp. 1162 (1991).
893.19
893.19
Limitation when person out of state. 893.19(1)
(1) If a person is out of this state when the cause of action accrues against the person an action may be commenced within the terms of this chapter respectively limited after the person returns or removes to this state. But the foregoing provision shall not apply to any case where, at the time the cause of action accrues, neither the party against nor the party in favor of whom the same accrues is a resident of this state; and if, after a cause of action accrues against any person, he or she departs from and resides out of this state the time of absence is not any part of the time limited for the commencement of an action; provided, that no foreign corporation which files with the department of financial institutions, or any other state official or body, pursuant to the requirements of any applicable statute of this state, an instrument appointing a registered agent as provided in
ch. 180, a resident or any state official or body of this state, its attorney or agent, on whom, pursuant to such instrument or any applicable statute, service of process may be made in connection with such cause of action, is deemed a person out of this state within the meaning of this section for the period during which such appointment is effective, excluding from such period the time of absence from this state of any registered agent, resident agent or attorney so appointed who departs from and resides outside of this state.
893.19(2)
(2) This section shall not apply to any person who, while out of this state, may be subjected to personal jurisdiction in the courts of this state on any of the grounds specified in
s. 801.05.
893.19 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.30 renumbered for more logical placement in restructured ch. 893 and revised for purposes of clarity only. [Bill 326-A]
893.19 Annotation
Validity of defense, under s. 893.205 (1), 1969 stats., of bar to the action by the North Carolina 3-year limitation statute, is determined in light of analysis of North Carolina products liability case law. Central Mut. Ins. Co. v. H. O., Inc. 63 W (2d) 54, 216 NW (2d) 239.
893.20
893.20
Application to alien enemy. When a person is an alien subject or citizen of a country at war with the United States the time of the continuance of the war is not a part of the time limited for the commencement of the action.
893.20 History
History: 1979 c. 323.
893.20 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.31 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.21
893.21
Effect of military exemption from civil process. The time during which any resident of this state has been exempt from the service of civil process on account of being in the military service of the United States or of this state, shall not be taken as any part of the time limited by law for the commencement of any civil action in favor of or against such person.
893.21 History
History: 1979 c. 323.
893.21 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.32 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.22
893.22
Limitation in case of death. If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives an action may be commenced by the person's representatives after the expiration of that time and within one year from the person's death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement of the action and the cause of action survives an action may be commenced after the expiration of that time and within one year after the issuing, within this state, of letters testamentary or of administration.
893.22 History
History: 1979 c. 323.
893.22 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.34 renumbered for more logical placement in restructured ch. 893 and revised for the purpose of clarity only. [Bill 326-A]
893.23
893.23
When action stayed. When the commencement of an action is stayed by injunction or statutory prohibition the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
893.23 History
History: 1979 c. 323.
893.23 Note
Judicial Council Committee's Note, 1979: This section is previous s. 893.36 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]
893.23 Annotation
The interplay between s. 893.23 and s. 893.80 creates a statute of limitations equal to 3 years and 120 days when filing a claim under s. 893.80. Colby v. Columbia County, 202 W (2d) 342, 550 NW (2d) 124 (1996).
ACTIONS CONCERNING REAL OR
PERSONAL PROPERTY
Subch. III of ch. 893 Note
Judicial Council Committee's Note, 1979: This subchapter assembles sections affecting real or personal property in a single location in ch. 893. It revises some present provisions; rearranges others; adds a 7-year limitation statute under certain circumstances and a codification of case-law relating to obtaining prescriptive rights by adverse user; and deletes several present sections considered unnecessary.
Subch. III of ch. 893 Annotation
Notes following the sections of the subchapter explain the rearrangements, changes, and additions. However, specific discussion of those sections eliminated follows:
Subch. III of ch. 893 Annotation
(1) Previous ss. 893.02 and 893.03 were judged duplicative of the principal operative sections and possibly confusing. Nelson v. Jacobs, 99 Wis. 547, 75 N.W. 406 (1898), appears to rely in part on these sections for the proposition that one who has adversely possessed for 20 years has marketable title which can be forced on a vendee who objects, even though not established of record. This is undesirable and contrary to current understanding; see Baldwin v. Anderson,
40 Wis. 2d 33,
161 N.W. 2d 553 (1968). In addition, Zellmer v. Martin, 157 Wis. 341, 147 N.W. 371 (1914) suggests that these sections may mean that 20 years of continuous disseisin of a true owner may bar that owner even if the claiming adverse possessor has not possessed in one of the ways required by previous s. 893.09. This may be confusing, since the language of previous s. 893.09 precluded other forms of possession under the 20-year statute. Other than as here noted, ss. 893.02 and 893.03 have been rarely cited and are not significant. In view of the presumption of possession by the true owner provided by previous s. 893.05, which this subchapter retains, previous ss. 893.02 and 893.03 contributed no needed substance to the subchapter.
