805.01 Note
Judicial Council Committee Note, 1983: The time deadline for demanding a jury trial is the scheduling conference where that occurs before or in lieu of the pretrial conference because knowledge of the mode of trial is required for proper scheduling. [Re Order effective July 1, 1983]
805.01 Annotation
Just as legal counterclaim in equitable action does not necessarily entitle counterclaimant to jury trial, amendment by plaintiff from equity to law does not necessarily entitle defendant to jury trial, if equitable action was brought in good faith. Tri-State Home Improvement Co. v. Mansavage, 77 W (2d) 648, 253 NW (2d) 474.
805.01 Annotation
Party is entitled as matter of right to jury trial on question of fact if that issue is retried, regardless of earlier waiver. Tesky v. Tesky, 110 W (2d) 205, 327 NW (2d) 706 (1983).
805.01 Annotation
Under facts of case, telephone testimony was not permissible. Town of Geneva v. Tills, 129 W (2d) 167, 384 NW (2d) 701 (1986).
805.01 Annotation
Where collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trail. Norwest Bank v. Plourde, 185 W (2d) 377, 518 NW (2d) 265 (Ct. App. 1994).
805.01 Annotation
The new Wisconsin rules of civil procedure: Chapters 805—807. Graczyk, 59 MLR 671.
805.01 Annotation
See also the notes to Article I, section 5 of the Wisconsin Constitution.
805.02
805.02
Advisory jury and trial by consent. 805.02(1)
(1) In all actions not triable of right by a jury, the court upon motion or on its own initiative may try any issue with an advisory jury.
805.02(2)
(2) With the consent of both parties, the court may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
805.02 History
History: Sup. Ct. Order, 67 W (2d) 585, 690 (1975).
805.03
805.03
Failure to prosecute or comply with procedure statutes. For failure of any claimant to prosecute or for failure of any party to comply with the statutes governing procedure in civil actions or to obey any order of court, the court in which the action is pending may make such orders in regard to the failure as are just, including but not limited to orders authorized under
s. 804.12 (2) (a). Any dismissal under this section operates as an adjudication on the merits unless the court in its order for dismissal otherwise specifies for good cause shown recited in the order. A dismissal on the merits may be set aside by the court on the grounds specified in and in accordance with
s. 806.07. A dismissal not on the merits may be set aside by the court for good cause shown and within a reasonable time.
805.03 History
History: Sup. Ct. Order, 67 W (2d) 585, 690 (1975).
805.03 Annotation
Complaint was dismissed for non-compliance with pre-trial order to produce medical report. Trispel v. Haefer, 89 W (2d) 725, 279 NW (2d) 242 (1979).
805.03 Annotation
Judgment dismissing action was void for lack of advance actual notice of dismissal which defined "failure to prosecute" standard. Neylan v. Vorwald, 124 W (2d) 85, 368 NW (2d) 648 (1985).
805.03 Annotation
See note to 802.10, citing Gaertner v. 880 Corp., 131 W (2d) 492, 389 NW (2d) 59 (Ct. App. 1986).
805.03 Annotation
Dismissal for failure to prosecute within year of filing required notice of standards. Rupert v. Home Mut. Ins. Co., 138 W (2d) 1, 405 NW (2d) 661 (Ct. App. 1987).
805.03 Annotation
Dismissal under this section is presumptively with prejudice. Where plaintiff failed to show "good cause" for delay, appeals court erred in dismissing without prejudice. Marshall-Wis. v. Juneau Square, 139 W (2d) 112, 406 NW (2d) 764 (1987).
805.03 Annotation
Dismissal for failure to prosecute wasn't abuse of discretion. Prahl v. Brosamle, 142 W (2d) 658, 420 NW (2d) 372 (Ct. App. 1987).
805.03 Annotation
Where conduct in failing to comply with court order is egregious and without clear and justifiable excuse, court may, in its discretion, order dismissal. Johnson v. Allis Chalmers Corp., 162 W (2d) 261, 470 NW (2d) 859 (1991).
805.03 Annotation
Ordering criminal defendant to pay state's trial expenses upon mistrial for violation of pretrial order was authorized by this section. State v. Heyer, 174 W (2d) 164, 496 NW (2d) 779 (Ct. App. 1993).
805.03 Annotation
In cases which do not fit squarely within this statute, a trial court has certain inherent powers to sanction parties including the awarding of attorney fees. Schaefer v. Northern Assurance Co. 182 W (2d) 148, 513 NW (2d) 16 (Ct. App. 1994).
805.03 Annotation
A party's failure to appear at a scheduled hearing, after writing the court indicating that unless it heard otherwise from the court it would consider itself excused, was insufficient to excuse the party's appearance and was grounds for dismissal of the party under this section. Buchanan v. General Casualty Co. 191 W (2d) 1, 528 NW (2d) 457 (Ct. App. 1995).
805.03 Annotation
The trial court erred in not considering other less severe sanctions before dismissing an action for failure to comply with a demand for discovery when no bad faith was found. Hudson Diesel, Inc. v. Kenall, 194 W (2d) 532, 535 NW (2d) 65 (Ct. App. 1995).
805.03 Annotation
Default judgment entered as a sanction is not governed by 806.02 and does not require a full evidentiary hearing where damages are contested. The proper form of hearing on damages is left to trail court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 W (2d) 43, 557 NW (2d) 775 (1997).
805.03 Annotation
Sections 802.10 (7) and 805.03 apply in criminal cases. A court has power to sanction a tardy attorney under these sections. Failure to delineate the reasons for the sanctions is an erroneous exercise of discretion. Anderson v. Circuit Court for Milwaukee County, 219 W (2d) 1, 578 NW (2d) 533 (1998).
805.04
805.04
Voluntary dismissal: effect thereof. 805.04(1)
(1)
By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.
805.04(2)
(2) By order of court. Except as provided in
sub. (1), an action shall not be dismissed at the plaintiff's instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.
805.04(3)
(3) Counterclaim, cross-claim and 3rd party claim. This section applies to the voluntary dismissal of any counterclaim, cross-claim, or 3rd party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.
805.04(4)
(4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.
805.04 History
History: Sup. Ct. Order, 67 W (2d) 585, 691 (1975).
805.04 Annotation
Assessment of attorney's fees as condition of voluntary dismissal without prejudice was within trial court's discretion. Dunn v. Fred A. Mikkelson, Inc. 88 W (2d) 369, 276 NW (2d) 748 (1979).
805.04 Annotation
Voluntary dismissal with prejudice rarely entitles defendant to award of fees and costs. Bishop v. Blue Cross & Blue Shield, 145 W (2d) 315, 426 NW (2d) 114 (Ct. App. 1988).
805.04 Annotation
See note to 32.06, citing Dickie v. City of Tomah, 160 W (2d) 20, 465 NW (2d) 262 (Ct. App. 1990).
805.04 Annotation
When any adverse party to an action files a responsive pleading prior to the time the plaintiff attempts to dismiss the action under sub. (1), a voluntary dismissal without prejudice is no longer obtainable. Gowan v. McClure, 185 W (2d) 903, 519 NW (2d) 692 (Ct. App. 1994).
805.04 Annotation
Where doubt exists regarding the finality of an order of dismissal, the court may look beyond the words "with prejudice" to determine if the dismissal was meant to be conclusive. Brye v. Brakebush, 32 F 3d 1179 (1994).
805.05
805.05
Consolidation; separate trials. 805.05(1)(a)(a) When actions which might have been brought as a single action under
s. 803.04 are pending before the court, it may order a joint hearing or trial of any or all of the claims in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
805.05(1)(b)
(b) When actions which might have been brought as a single action under
s. 803.04 are pending before different courts, any such action may be transferred upon motion of any party or of the court to another court where the related action is pending. A conference involving both judges and all counsel may be convened on the record as prescribed by
s. 807.13 (3). Transfer under this paragraph shall be made only by the joint written order of the transferring court and the court to which the action is transferred.
805.05(2)
(2) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, or pursuant to
s. 803.04 (2) (b), may order a separate trial of any claim, cross-claim, counterclaim or 3rd party claim, or of any number of claims, always preserving inviolate the right of trial in the mode to which the parties are entitled.
805.05 History
History: Sup. Ct. Order, 67 W (2d) 585, 692 (1975); Sup. Ct. Order, 141 W (2d) xiii (1987).
805.05 Note
Judicial Council Note, 1988: Sub. (1) (b) is amended by allowing conferences regarding consolidation of actions to be conducted by telephone conference. [Re Order effective Jan. 1, 1988]
805.06(1)(1) A court in which an action is pending may appoint a referee who shall have such qualifications as the court deems appropriate. The fees to be allowed to a referee shall be fixed by the court and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court, as the court may direct. The referee shall not retain the referee's report as security for compensation; but if the party ordered to pay the fee allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.
805.06(2)
(2) A reference shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.
805.06(3)
(3) The order of reference to the referee may specify or limit the referee's powers and may direct the referee to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee's report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before the referee and to do all acts and take all measures necessary or proper for the efficient performance of duties under the order. The referee may require the production of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. The referee may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may personally examine them and may call the parties to the action and examine them upon oath. When a party so requests, the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as a court sitting without a jury.
805.06(4)(a)(a) When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within 20 days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Any party, on notice to the parties and the referee, may apply to the court for an order requiring the referee to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or may adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
805.06(4)(b)
(b) The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas. If without adequate excuse a witness fails to appear to give evidence, the witness may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in
ss. 885.11 and
885.12.
805.06(4)(c)
(c) When matters of accounting are in issue, the referee may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the referee directs.
805.06(5)(a)(a) The referee shall prepare a report upon the matters submitted by the order of reference and, if required to make findings of fact and conclusions of law, the referee shall set them forth in the report. The referee shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
805.06(5)(b)
(b) In an action to be tried without a jury the court shall accept the referee's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice. The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instruction.
805.06(5)(c)
(c) In an action to be tried by a jury the referee shall not be directed to report the evidence. The referee's findings upon the issues submitted are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.
805.06(5)(d)
(d) The effect of a referee's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a referee's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
805.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 693 (1975);
1975 c. 218.
805.06 Annotation
Trial court properly refused to admit additional evidence on issue of fact which referee was appointed to resolve. Kleinstick v. Daleiden, 71 W (2d) 432, 238 NW (2d) 714.
805.07(1)(1)
Issuance and service. Subpoenas shall be issued and served in accordance with
ch. 885. A subpoena may also be issued by any attorney of record in a civil action or special proceeding to compel attendance of witnesses for deposition, hearing or trial in the action or special proceeding.
805.07(2)
(2) Subpoena requiring the production of material. 805.07(2)(a)(a) A subpoena may command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein.
805.07(2)(b)
(b) Notice of a third-party subpoena issued for discovery purposes shall be provided to all parties at least 10 days before the scheduled deposition in order to preserve their right to object. If a third-party subpoena requests the production of books, papers, documents or tangible things that are within the scope of discovery under
s. 804.01 (2) (a), those objects shall not be provided before the time and date specified in the subpoena. The provisions under this paragraph apply unless all of the parties otherwise agree.
805.07(3)
(3) Protective orders. Upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may (a) quash or modify the subpoena if it is unreasonable and oppressive or (b) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things designated therein.
805.07(4)(a)(a) The subpoena shall be in the following form:
Subpoena
State of Wisconsin
.... County
The State of Wisconsin, To ....:
Pursuant to section 805.07 of the Wisconsin Statutes, you are hereby commanded to appear in person before [.... designating the court, officer, or person and place of appearance], on [.... date] at .... o'clock ...M., to give evidence in an action between ...., plaintiff, and ...., defendant. [Insert clause requiring the production of material, if appropriate]. Failure to appear may result in punishment for contempt which may include monetary penalties, imprisonment and other sanctions. Issued this .... day of ...., .... (year)
[Handwritten Signature]
Attorney for [identify party]
(or other official title)
[Address]
[Telephone Number]
805.07(4)(b)
(b) For a subpoena requiring the production of material, the following shall be inserted in the foregoing form: You are further commanded to bring with you the following: [describing as accurately as possible the books, papers, documents or other tangible things sought].
805.07(5)
(5) Substituted service. A subpoena may be served in the manner provided in
s. 885.03 except that substituted personal service may be made only as provided in
s. 801.11 (1) (b) and except that officers, directors, and managing agents of public or private corporations or limited liability companies subpoenaed in their official capacity may be served as provided in
s. 801.11 (5) (a).
805.07 History
History: Sup. Ct. Order, 67 W (2d) 585, 697 (1975);
1979 c. 110; Sup. Ct. Order, 141 W (2d) xiii (1987);
1987 a. 155;
1993 a. 112; Sup. Ct. Order, No. 95-09, 195 W (2d) xiii (1996);
1997 a. 250.
805.07 Note
Judicial Council Note, 1988: Sub. (6) [created] allows motions for protective orders to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
805.07 Note
Judicial Council Note, 1995: Sub. (2) (b) requires notice of third-party discovery subpoenas in order to preserve the right of other parties to move to quash them.
805.07 Annotation
Court may quash under (3) only subpoena to compel production of tangible things, not subpoena to compel attendance of witnesses. State v. Gilbert, 109 W (2d) 501, 326 NW (2d) 744 (1982).
805.08(1)(1)
Qualifications, examination. The court shall examine on oath each person who is called as a juror to discover whether the juror is related by blood or marriage to any party or to any attorney appearing in the case, or has any financial interest in the case, or has expressed or formed any opinion, or is aware of any bias or prejudice in the case. If a juror is not indifferent in the case, the juror shall be excused. Any party objecting for cause to a juror may introduce evidence in support of the objection. This section shall not be construed as abridging in any manner the right of either party to supplement the court's examination of any person as to qualifications, but such examination shall not be repetitious or based upon hypothetical questions.
805.08(2)
(2) Number of jurors. A sufficient number of jurors shall be summoned in the action so that the number applicable under
s. 756.06 remains after the exercise of all peremptory challenges to which the parties are entitled under
sub. (3). The court may order that additional jurors be selected. In that case, if the number of jurors remains more than required at the time of the final submission of the cause, the court shall determine by lot which jurors shall not initially participate in deliberations. The court may hold the additional jurors until the verdict is rendered or discharge them at any time.
805.08(3)
(3) Peremptory challenges. Each party shall be entitled to 3 peremptory challenges which shall be exercised alternately, the plaintiff beginning; and when any party declines to challenge in turn, the challenge shall be made by the clerk by lot. The parties to the action shall be deemed 2, all plaintiffs being one party and all defendants being the other party, except that in a case where 2 or more defendants have adverse interests, the court, if satisfied that the due protection of their interests so requires, in its discretion, may allow peremptory challenges to the defendant or defendants on each side of the adverse interests, not to exceed 3. Each side shall be entitled to one peremptory challenge in addition to those otherwise allowed by law if additional jurors are to be selected under
sub. (2).
805.08(4)
(4) Jury view. On motion of any party, the jury may be taken to view any property, matter or thing relating to the controversy between the parties when it appears to the court that the view is necessary to a just decision. The moving party shall pay the expenses of the view. The expenses shall afterwards be taxed like other legal costs if the party who incurred them prevails in the action.
