806.04 Annotation
While in most cases a court may not know a declaratory judgment would not terminate a controversy giving rise to the proceeding until it had heard the evidence, a court need not go through trial to arrive at a foregone conclusion when it appears on the face of the complaint a declaratory judgment would not terminate the controversy. (Language in Miller v. Currie, 208 Wis. 199, intimating otherwise, is modified in accordance herewith.) American Med. S. Inc. v. Mutual Fed. S. & L. 52 W (2d) 198, 188 NW (2d) 529.
806.04 Annotation
Sub. (5) qualifies the specific powers enumerated in subs. (2), (3) and (4) as well as sub. (1) and the discretionary power in sub. (6) applies to all cases. Even if a complaint states a cause of action for declaratory relief it may be dismissed if a declaratory judgment would not terminate the controversy. American Med. S. Inc. v. Mutual Fed. S. & L. 52 W (2d) 198, 188 NW (2d) 529.
806.04 Annotation
In a suit for declaratory judgment the complaint should not be dismissed when the judgment declares the rights on the complaint or the merits are decided; dismissal is proper when for a valid reason the merits are not reached and the suit should not be entertained. Kenosha v. Unified School Dist. No. 1, 55 W (2d) 642, 201 NW (2d) 66.
806.04 Annotation
A complaint alleging that the insurance commissioner is threatening action against an insurance agent who also contracts to service employe welfare funds, claiming a violation of 211.14 (2) (a), Stats. 1969, states a valid basis for declaratory judgment as against a demurrer. Pension Management, Inc. v. DuRose, 58 W (2d) 122, 205 NW (2d) 553.
806.04 Annotation
In a complaint of putative father, challenge to the propriety of seeking declaratory relief is not sustained because the relief sought falls within the broad scope of declaratory judgment jurisdiction, meets the 4 requisites for its invocation, and a judgment entered herein will terminate the controversy. Slawek v. Stroh, 62 W (2d) 295, 215 NW (2d) 9.
806.04 Annotation
Plaintiffs-taxpayers have standing to challenge constitutionality of county assessor statute. Thompson v. Kenosha County, 64 W (2d) 673, 221 NW (2d) 845.
806.04 Annotation
Request by the employer for declaratory judgment cannot be entertained because the purpose of the statute was to expedite justice and to avoid long and complicated litigation, not to interrupt legal proceedings presently in operation. State v. WERC, 65 W (2d) 624, 223 NW (2d) 543.
806.04 Annotation
Service of a copy of the proceedings upon the attorney general under (11) is not only mandatory, but goes to the jurisdiction of the court to hear the action in the first instance. Bollhoffer v. Wolke, 66 W (2d) 141, 223 NW (2d) 902.
806.04 Annotation
Sustaining of the demurrer was also proper with respect to plaintiffs' attempt via declaratory judgment to effect dissolution of a subdivision corporation where: (1) The determination of the corporation's right to exist would affect members thereof not before the court as parties; (2) sub. (11) requires that all persons who "would be affected by the declaration" shall be made parties; and (3) a corporation may only be dissolved by voluntary act of its shareholders or involuntary proceedings initiated by the attorney general. Rudolph v. Indian Hills Estates, Inc. 68 W (2d) 768, 229 NW (2d) 671.
806.04 Annotation
Hospitals are "direct objects" of 70.11 (4m) for purposes of standing to bring declaratory judgment action seeking tax exemption for medical equipment leased by hospital from commercial lessor. Madison Gen. Hosp. Asso. v. City of Madison, 71 W (2d) 259, 237 NW (2d) 750.
806.04 Annotation
Declaratory judgments discussed. State ex rel. Lynch v. Conta, 71 W (2d) 662, 239 NW (2d) 313.
806.04 Annotation
Discussion of the use of the declaratory judgment act against the state, agencies and officers. Lister v. Bds. of Regents, 72 W (2d) 282, 240 NW (2d) 610.
806.04 Annotation
In declaratory judgment action by taxpayers against school board, legal conclusions in complaint challenging constitutionality of taxing statute were permissible. Declaratory judgment actions discussed. Tooley v. O'Connell, 77 W (2d) 422, 253 NW (2d) 335.
806.04 Annotation
Service on the attorney general is a jurisdictional prerequisite under (11) even when the constitutional issue is collateral to or a preliminary step in the determination of rights sought to be declared. O'Connell v. Bd. of Ed., Jt. Dist. #10, 82 W (2d) 728, 264 NW (2d) 561.
806.04 Annotation
Service under (11) on attorney general is timely if made in time to permit defense against claim of unconstitutionality. Town of Walworth v. Fontana-on-Geneva Lake, 85 W (2d) 432, 270 NW (2d) 442 (Ct. App. 1978).
806.04 Annotation
Where constitutionality of statute is challenged in action other than declaratory judgment action, attorney general must be served but failure to do so at trial level was cured by service at appellate level. In Matter of Estate of Fessler, 100 W (2d) 437, 302 NW (2d) 414 (1981).
806.04 Annotation
Trial court did not abuse discretion by declaring rights which would be created if a proposed release agreement were executed. Loy v. Bunderson, 107 W (2d) 400, 320 NW (2d) 175 (1982).
806.04 Annotation
Attorney's fees are not recoverable as "costs" under (10). Kremers-Urban Co. v. American Employers Ins. 119 W (2d) 722, 351 NW (2d) 156 (1984).
806.04 Annotation
Under (11) plaintiff must serve JCRAR within 60 days pursuant to 893.02. Richards v. Young, 150 W (2d) 549, 441 NW (2d) 742 (1989).
806.04 Annotation
Discussion of standing requirement. Weber v. Town of Lincoln, 159 W (2d) 144, 463 NW (2d) 869 (Ct. App. 1990).
806.04 Annotation
Facts or conditions necessary for declaratory relief listed and discussed. Miller Brands-Milwaukee v. Case, 162 W (2d) 684, 470 NW (2d) 290 (1991).
806.04 Annotation
Supplemental relief under (8) may include attorney fees incurred by an insured in establishing coverage under a policy. Elliott v. Donahue, 169 W (2d) 310, 485 NW (2d) 403 (1992).
806.04 Annotation
If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 W (2d) 74, 549 NW (2d) 690 (1996).
806.05
806.05
Declaratory judgments against obscene matter. 806.05(1)(1)
Grounds for and commencement of action. Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under
ch. 985. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court.
806.05(1m)
(1m) Interlocutory adjudication. After the issuance of the order to show cause under
sub. (1), the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in
sub. (3) or
(5), but only until such final judgment is made or until further order of the court.
806.05(2)
(2) Right to defend; jury trial. Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.
806.05(3)
(3) Default. If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.
806.05(4)
(4) Speedy hearing; rules of evidence. If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in
sub. (3). If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to
chs. 901 to
911, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.
806.05(5)
(5) Findings and judgment. If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under
chs. 808 and
809 by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.
806.05(6)
(6) Admissibility in criminal prosecutions. In any trial for a violation of
s. 944.21, the proceeding under this section and the final judgment of the circuit court under
sub. (3) or
(5) or the interlocutory adjudication under
sub. (1m), shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant's knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.
806.05 History
History: Sup. Ct. Order, 67 W (2d) 585, 721 (1975);
1975 c. 218;
1977 c. 187,
272.
806.05 Annotation
Statutory procedures and constitutionality of the statute discussed. State v. I, A Woman—Part II, 53 W (2d) 102, 191 NW (2d) 897.
806.05 Annotation
Notice procedure under (1) met due process requirements. State v. Erotomic, 87 W (2d) 536, 275 NW (2d) 160 (Ct. App. 1979).
806.06
806.06
Rendition, perfection and entry of judgment. 806.06(1)(a)(a) A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge's written direction.
806.06(1)(b)
(b) A judgment is entered when it is filed in the office of the clerk of court.
806.06(1)(c)
(c) A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment.
806.06(1)(d)
(d) A judgment is granted when given orally in open court on the record.
806.06(2)
(2) The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition.
806.06(3)
(3) After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry.
806.06(4)
(4) A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs. If proceedings are stayed under
s. 806.08, judgment may be perfected at any time within 30 days after the expiration of the stay. If the parties agree to settle all issues but fail to file a notice of dismissal, the judge may direct the clerk to draft an order dismissing the action. No execution shall issue until the judgment is perfected or until the expiration of the time for perfection, unless the party seeking execution shall file a written waiver of entitlement to costs.
806.06(5)
(5) Notice of entry of judgment or order must be given within 21 days after the entry of judgment or order to constitute notice under
s. 808.04 (1).
806.06 History
History: Sup. Ct. Order, 67 W (2d) 585, 724 (1975);
1975 c. 218; Sup. Ct. Order, 83 W (2d) xiii (1978); Sup. Ct. Order, 92 W (2d) xiii (1979); Sup. Ct. Order, 104 W (2d) xi (1981).
806.06 Note
Judicial Council Committee's Note, 1979: Sub. (5) is amended by adding a reference to the entry of an order so as to conform with 808.04 (1), which establishes appeal time periods from the entry of a judgment "or" order. [Re Order effective Jan. 1, 1980]
806.06 Note
Judicial Council Committee's Note, 1981: Subs. (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry. [Re Order effective Jan. 1, 1982]
806.06 Annotation
Notice of entry of judgment was "given" within meaning of 806.06 (5) when it was mailed; 801.15 (5) was inapplicable. Bruns v. Muniz, 97 W (2d) 742, 295 NW (2d) 11 (Ct. App. 1980).
806.06 Annotation
Last document in litigation should indicate on its face that for purposes of appeal it is final order or judgment and no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc. 109 W (2d) 490, 326 NW (2d) 240 (1982).
806.06 Annotation
See note to 808.04 citing Linnmar, Inc. v. First Enterprises, 161 W (2d) 706, 468 NW (2d) 741 (Ct. App. 1991).
806.06 Annotation
Sub. (4) governs the timeliness of an application for attorney fees in a federal civil rights action. Hartman v. Winnebago County, 216 W (2d) 418, 574 NW (2d) 222 (1998).
806.07
806.07
Relief from judgment or order. 806.07(1)
(1) On motion and upon such terms as are just, the court, subject to
subs. (2) and
(3), may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
806.07(1)(a)
(a) Mistake, inadvertence, surprise, or excusable neglect;
806.07(1)(c)
(c) Fraud, misrepresentation, or other misconduct of an adverse party;
806.07(1)(e)
(e) The judgment has been satisfied, released or discharged;
806.07(1)(f)
(f) A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
806.07(1)(g)
(g) It is no longer equitable that the judgment should have prospective application; or
806.07(1)(h)
(h) Any other reasons justifying relief from the operation of the judgment.
806.07(2)
(2) The motion shall be made within a reasonable time, and, if based on
sub. (1) (a) or
(c), not more than one year after the judgment was entered or the order or stipulation was made. A motion based on
sub. (1) (b) shall be made within the time provided in
s. 805.16. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.
806.07(3)
(3) A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under
s. 48.91 (3) granting adoption of a child. A petition for termination of parental rights under
s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.
806.07 History
History: Sup. Ct. Order, 67 W (2d) 585, 726 (1975);
1975 c. 218;
1997 a. 114.
806.07 Annotation
There was no abuse of discretion in denying relief where movant answered complaint by business letter, movant was experienced business person, well-educated and had undergone nearly identical experience in former case. Hansher v. Kaishian, 79 W (2d) 374, 255 NW (2d) 564.
806.07 Annotation
Lawyer's failure to answer complaint due to misplacing client's papers while moving office did not relieve client from resulting default judgment. Dugenske v. Dugenske, 80 W (2d) 64, 257 NW (2d) 865.
806.07 Annotation
Trial court abused discretion in refusing to vacate default judgment under (1) (a) where defendant sent letter purporting to be an answer to plaintiff's counsel. Maier Const., Inc. v. Ryan, 81 W (2d) 463, 260 NW (2d) 700.
806.07 Annotation
Section 805.17 (3) does not limit trial court's discretionary power to grant relief under 806.07 (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith, 82 W (2d) 667, 264 NW (2d) 239.
806.07 Annotation
Motion filed over 6 months after entry of judgment was not filed within "reasonable time" under (2). Rhodes v. Terry, 91 W (2d) 165, 280 NW (2d) 248 (1979).
806.07 Annotation
See note to 808.07, citing Chicago & N.W.R.R. v. Labor & Ind. Rev. Comm. 91 W (2d) 462, 283 NW (2d) 603 (Ct. App. 1979).
806.07 Annotation
Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 W (2d) 407, 284 NW (2d) 674 (1979).
806.07 Annotation
Neglect of both lawyer and client was not "excusable". Charolais Breeding Ranches v. Wiegel, 92 W (2d) 498, 285 NW (2d) 720 (1979).
806.07 Annotation
Trial court did not abuse discretion in setting aside judicial sale where buyer based bid on incorrect figures in judgment of foreclosure. Family Savings and Loan Asso. v. Barkwood Landscaping Co., Inc. 93 W (2d) 190, 286 NW (2d) 581 (1980).
806.07 Annotation
Relief from judgment entered in ch. 227 review may not be granted under this section. Charter Mfg. v. Milw. River Restoration, 102 W (2d) 521, 307 NW (2d) 322 (Ct. App. 1981).
806.07 Annotation
Court did not err in refusing to reopen erroneously entered judgment. Wis. Pub. Serv. Corp. v. Krist, 104 W (2d) 381, 311 NW (2d) 624 (1981).
806.07 Annotation
New testing methods to establish paternity cannot be used to affect finality of long-decided paternity determination. State ex rel. R. A. S. v. J. M. 114 W (2d) 305, 338 NW (2d) 851 (Ct. App. 1983).
806.07 Annotation
See note to 814.025, citing Wengerd v. Rinehart, 114 W (2d) 575, 338 NW (2d) 861 (Ct. App. 1983).
806.07 Annotation
Sub. (1) (h) allows relief even if claim sounds in par. (a), (b) or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H. 122 W (2d) 536, 363 NW (2d) 419 (1985).
806.07 Annotation
"Reasonable time" requirement of (2) does not apply to void judgments. Neyland v. Vorwald, 124 W (2d) 85, 368 NW (2d) 648 (1985).
806.07 Annotation
Order granting motion under (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc. 145 W (2d) 66, 426 NW (2d) 41 (Ct. App. 1988).
806.07 Annotation
Order vacating judgment arises in context of underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Ins. Agency, Inc. 145 W (2d) 66, 426 NW (2d) 41 (Ct. App. 1988).
806.07 Annotation
Court may not use (1) (h) purely as vehicle to extend time period for appeal. Eau Claire County v. Employers Ins. 146 W (2d) 101, 430 NW (2d) 579 (Ct. App. 1988).
806.07 Annotation
Finding that there are grounds to reopen divorce judgment under (1) does not require reopening it; trial court may exercise discretion in determining whether there are factors militating against reopening judgment. In re Marriage of Johnson v. Johnson, 157 W (2d) 490, 460 NW (2d) 166 (Ct. App. 1990).
806.07 Annotation
A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under (1) (h). Schwochert v. American Family Ins. Co. 166 W (2d) 97, 479 NW (2d) 190 (Ct. App. 1991). See also Schwochert v. American Family Ins. Co. 172 W (2d) 628, 494 NW (2d) 201 (1992).
806.07 Annotation
A property division may be modified under s. 806.07, however the supremacy clause prevents a division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 W (2d) 285, 493 NW (2d) 737 (Ct. App. 1992).
806.07 Annotation
Sub. (1) (g) applies only to equitable actions. Nelson v. Taff, 175 W (2d) 178, 499 NW (2d) 685 (Ct. App. 1993).
806.07 Annotation
A "reasonable time" to bring a motion under (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C. 181 W (2d) 618, 511 NW (2d) 868 (Ct. App. 1994).
806.07 Annotation
Bank, in failing to file an answer due to mislaying papers, was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 W (2d) 321, 525 NW (2d) 271 (Ct. App. 1994).
806.07 Annotation
In determining whether to overturn a default judgment the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored and default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank, 189 W (2d) 321, 525 NW (2d) 271 (Ct. App. 1994).
