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).
806.07 Annotation
A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliot, 190 W (2d) 816, 528 NW (2d) 17 (Ct. App. 1995).
806.07 Annotation
Case law is not a "prior judgment" under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass'n, 194 W (2d) 62, 533 NW (2d) 470 (1995).
806.07 Annotation
The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Mfg., Inc. v. Midland Machinery, 205 W (2d) 643, 556 NW (2d) 437 (Ct. App. 1996).
806.07 Annotation
An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin, 209 W (2d) 72, 561 NW (2d) 810 (Ct. App. 1997).
806.07 Annotation
When the record demonstrates the circuit court's intention to send notice to parties of an order, but the court fails to do so and acknowledges the mistake, the court may effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp. 210 W (2d) 639, 563 NW (2d) 519 (1997).
806.07 Annotation
To obtain relief under sub. (2) from a judgment obtained as the result of fraud on a court, the complaining party must have responded without inexcusable neglect which includes unexplained delay in responding to the original action. Dekker v. Wergin, 214 W (2d) 17, 570 NW (2d) 861 (Ct. App. 1997).
806.07 Annotation
To vacate a default judgment under sub. (1) (a) the moving party must set forth a meritorious defense, which is a defense good at law which would survive a motion for judgment on the pleadings. J.L. Phillips & Associates v. E& H Plastic Corp. 217 W (2d) 348, 577 NW (2d) 13 (1998).
806.08
806.08
Stay of proceedings to enforce a judgment. 806.08(1)(1) Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.
Subsection (3) governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
806.08(2)
(2) In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial, or to alter or amend a judgment, or of a motion for relief from a judgment or order.
806.08(3)
(3) When an appeal is taken from an interlocutory or final judgment or appealable order granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
806.08(4)
(4) When an appeal is taken, the appellant may obtain a stay in accordance with
s. 808.07.
806.08(5)
(5) This section does not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
806.08(6)
(6) When a court has rendered a final judgment under the conditions stated in
s. 806.01 (2), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
806.08 History
History: Sup. Ct. Order, 67 W (2d) 585, 726 (1975); Sup. Ct. Order, 67 W (2d) vii (1975);
1977 c. 187 s.
135;
1979 c. 110 s.
60 (9).
806.09
806.09
Restitution in case of reversed judgment; purchaser for value. 806.09(1)(1) If any judgment or part of a judgment is collected and such judgment is afterwards set aside or reversed, the trial court shall order the same to be restored with interest from the time of the collection, but in case a new trial is ordered the party who has collected the judgment may retain the same pending the new trial, upon giving a bond in such sum and with such sureties as the court shall order, conditioned for the restoration of the amount collected with interest from the time of collection. The order of restitution may be obtained upon proof of the facts upon notice and motion and may be enforced as a judgment. Nothing herein shall affect or impair the right or title of a purchaser for value in good faith without notice.
806.09(2)
(2) Whenever in a civil action on appeal to the court of appeals or the supreme court the appellant fails to stay execution and pending the appeal the sheriff or other officer collects all or any part of the judgment appealed from, the officer collecting the judgment shall deposit the amount collected, less the officer's fees, with the clerk of the court out of which execution issued. In case of reversal on the appeal, restitution may be made in accordance with
sub. (1). In case of affirmance the clerk shall pay over the deposit to the judgment creditor on the filing of the remittitur from the court of appeals or the supreme court.
806.09 History
History: Sup. Ct. Order, 67 W (2d) 585, 728 (1975);
1975 c. 218;
1977 c. 187.
806.10
806.10
Judgment and lien docket. 806.10(1)
(1) At the time of entry of a judgment directing in whole or in part the payment of money, or a judgment naming a spouse under
s. 806.15 (4), and upon payment of the exact amount of the fee prescribed in
s. 814.61 (5) (b), the clerk of circuit court shall enter the judgment in the judgment and lien docket, arranged alphabetically, including all of the following:
806.10(1)(a)
(a) The full name and place of residence of each judgment debtor and of the spouse or former spouse of the judgment debtor if the spouse is named in a judgment described under
s. 806.15 (4). If the judgment or judgment and lien docket fails to give the place of residence of the judgment debtor or the judgment debtor's spouse or former spouse, the validity of the judgment is not affected thereby, but the judgment creditor may at any time file with the clerk of circuit court an affidavit stating, on knowledge or information and belief, the information. The clerk of circuit court shall thereupon enter the facts according to the affidavit in the judgment and lien docket, noting the date and time of the entry.
806.10(1)(b)
(b) The name of the judgment creditor, in like manner.
806.10(1)(c)
(c) The name of the attorney for the judgment creditor, if stated in the record.
806.10(1)(f)
(f) The amount of the debt, damages or other sum of money recovered, with the costs.
806.10(1m)
(1m) If a judgment is against several persons, the clerk of circuit court shall enter the judgment, in accordance with the procedure under
sub. (1) in the judgment and lien docket under the name of each person against whom the judgment was rendered.
806.10(2)
(2) Whenever any judgment entered in the judgment and lien docket is reversed and the remittitur filed, the clerk of circuit court shall enter "reversed on appeal" on the judgment and lien docket.
806.10(3)
(3) Every clerk of circuit court who enters a judgment or decree and enters upon the judgment and lien docket a date or time other than that of its actual entry or neglects to enter the same at the proper time shall be liable to the party injured.
