803.06(1)
(1) Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or on its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. Oral argument permitted on motions under this subsection may be heard by telephone under
s. 807.13 (1).
803.06(2)
(2) When it comes to the attention of the court that the summons has not been served upon a named defendant, the court may enter an order on its own initiative, after notice to parties of record, dismissing the action as to that defendant without prejudice.
803.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 649 (1975); Sup. Ct. Order, 73 W (2d) xxxi (1976); Sup. Ct. Order, 141 W (2d) xiii (1987).
803.06 Note
Judicial Council Committee's Note, 1976: Sub. (2) establishes an efficient procedure for dismissing an action against a defendant who has not been served. It will help alleviate situations such as clouds on title that could result from a summons that was not served being on file with the clerk of court. [Re Order effective Jan. 1, 1977]
803.06 Note
Judicial Council Note, 1988: Sub. (1) is amended to permit oral argument on motions to drop or add parties to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
803.07
803.07
Interpleader. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in
s. 803.04.
803.07 History
History: Sup. Ct. Order, 67 W (2d) 585, 649 (1975);
1975 c. 218.
803.08
803.08
Class actions. When the question before the court is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.
803.08 History
History: Sup. Ct. Order, 67 W (2d) 585, 650 (1975).
803.08 Annotation
Section 803.08 is inapplicable to procedure for making claims against a county. Multiple claims must identify each claimant and show each claimant's authorization. Hicks v. Milwaukee County, 71 W (2d) 401, 238 NW (2d) 509.
803.08 Annotation
Trial court did not abuse its discretion in determining that an action for damages caused by the negligent withdrawal of groundwater was not an appropriate class action. Nolte v. Michels Pipeline Const. Inc. 83 W (2d) 171, 265 NW (2d) 482 (1978).
803.08 Annotation
Test of common interest under 260.12, 1973 Stats., is whether all members of purported class desire same outcome of suit that their alleged representatives desire. Goebel v. First Fed. Savings & Loan Asso. 83 W (2d) 668, 266 NW (2d) 352 (1978).
803.08 Annotation
Choice of law in class action based on pension rights discussed. Schlosser v. Allis-Chalmers Corp. 86 W (2d) 226, 271 NW (2d) 879 (1978).
803.08 Annotation
Trial court must decide if named plaintiffs can fairly represent common class interest which they share with represented class and if joinder of all members is impracticable. O'Leary v. Howard Young Medical Center, 89 W (2d) 156, 278 NW (2d) 217 (Ct. App. 1979).
803.08 Annotation
Procedural aspects of class action suits discussed. Mercury Record v. Economic Consultants, 91 W (2d) 482, 283 NW (2d) 613 (Ct. App. 1979).
803.09(1)(1) Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.
803.09(2)
(2) Upon timely motion anyone may be permitted to intervene in an action when a movant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order or rule administered by a federal or state governmental officer or agency or upon any regulation, order, rule, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely motion may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
803.09(3)
(3) A person desiring to intervene shall serve a motion to intervene upon the parties as provided in
s. 801.14. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.
803.09 History
History: Sup. Ct. Order, 67 W (2d) 585, 650 (1975);
1975 c. 218.
803.09 Annotation
Postjudgment applicant for leave to intervene must show sufficient reason for having waited. Milwaukee Sewerage Commission v. DNR, 104 W (2d) 182, 311 NW (2d) 677 (Ct. App. 1981).
803.09 Annotation
See note to 227.53, citing Fox v. DHSS, 112 W (2d) 514, 334 NW (2d) 532 (1983).
803.09 Annotation
See note to 59.20, citing State ex rel. Bilder v. Delavan Tp. 112 W (2d) 539, 334 NW (2d) 252 (1983).
803.09 Annotation
Newspaper's postjudgment motion to intervene to open sealed court records was timely and proper. C. L. v. Edson, 140 W (2d) 168, 409 NW (2d) 417 (Ct. App. 1987).
803.10
803.10
Substitution of parties. 803.10(1)(a)(a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in
s. 801.14 and upon persons not parties in the manner provided in
s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
803.10(1)(b)
(b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.
803.10(2)
(2) Incompetency. If a party becomes incompetent, the court upon motion served as provided in
sub. (1) may allow the action to be continued by or against the incompetent party's representative.
803.10(3)
(3) Transfer of interest. In case of any transfer of interest, the action may be continued by or against the original party unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in
sub. (1).
803.10(4)
(4) Public officers; death or separation from office. 803.10(4)(a)(a) When a public officer, including a receiver or trustee appointed by virtue of any statute, is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.
803.10(4)(b)
(b) When a public officer sues or is sued in an official capacity, the public officer may be described as a party by the official title rather than by name; but the court may require the officer's name to be added.
803.10(5)
(5) Death after verdict or findings. After an accepted offer to allow judgment to be taken or to settle pursuant to
s. 807.01, or after a verdict, report of a referee or finding by the court in any action, the action does not abate by the death of any party, but shall be further proceeded with in the same manner as if the cause of action survived by law; or the court may enter judgment in the names of the original parties if such offer, verdict, report or finding be not set aside. But a verdict, report or finding rendered against a party after death is void.
803.10 History
History: Sup. Ct. Order, 67 W (2d) 585, 652 (1975);
1975 c. 200,
218;
1993 a. 486.
803.10 Annotation
Letter to court and opposing counsel stating that plaintiff had died wasn't "suggestion of death" under (1) (a). Wheeler v. General Tire & Rubber Co., 142 W (2d) 798, 419 NW (2d) 331 (Ct. App. 1987).
803.10 Annotation
"Suggestion of death" which failed to identify proper party to substitute for deceased didn't trigger running of 90-day period. Wick v. Waterman, 143 W (2d) 676, 421 NW (2d) 872 (Ct. App. 1988).
