801.11(6)
(6) Partners and partnerships. A summons shall be served individually upon each general partner known to the plaintiff by service in any manner prescribed in
sub. (1),
(2) or
(5) where the claim sued upon arises out of or relates to partnership activities within this state sufficient to subject a defendant to personal jurisdiction under
s. 801.05 (2) to
(10). A judgment rendered under such circumstances is a binding adjudication individually against each partner so served and is a binding adjudication against the partnership as to its assets anywhere.
801.11 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 602 (1975);
1975 c. 218;
1977 c. 339 s.
43;
1979 c. 89,
102,
177;
1983 a. 192 s.
303 (2);
1985 a. 225; Sup. Ct. Order, 130 Wis. 2d xix (1986);
1993 a. 112,
184,
265,
399,
491;
1997 a. 140;
1999 a. 32.
801.11 Cross-reference
Cross-reference: As to service on corporation, see also s.
180.0504.
Effective date note
Judicial Council Note, 1986: Sub. (1) (b) is amended to permit substituted service upon residents of other states. Service upon nonresidents may be made either as provided for Wisconsin residents or in accordance with the substituted service rule of the state wherein service is made. [Re Order eff. 7-1-86]
801.11 Annotation
There is no requirement in cases of substituted service that the affidavit recite that the process server used "reasonable diligence" in attempting to make personal service, but substituted service after 2 calls when defendant was not found, with no effort to learn where he was, was not sufficient to support jurisdiction. Heaston v. Austin,
47 Wis. 2d 67,
176 N.W.2d 309.
801.11 Annotation
Where a village is a defendant, service is void if it is made upon the clerk's spouse in the clerk's absence. Town of Washington v. Village of Cecil,
53 Wis. 2d 710,
193 N.W.2d 674.
801.11 Annotation
The words "apparently in charge of the office" in sub. (5) (a) refer to what is apparent to the process server. When a receptionist referred the process server to her superior, who did not send the server to the proper office, the server could serve him, particularly since the superior had accepted service of process in other actions without objection by the company. Keske v. Square D Co.
58 Wis. 2d 307,
206 N.W.2d 189.
801.11 Annotation
Where personal jurisdiction is challenged under the "long arm" statutes, the burden is on the plaintiff to prove prima facie the facts supporting jurisdiction. A plaintiff who relies on sub. (5) is required to establish as a predicate that the defendant entered into some consensual agreement with the plaintiff that contemplated a substantial contact in Wisconsin. Afram v. Balfour, Maclaine, Inc.
63 Wis. 2d 702,
218 N.W.2d 288.
801.11 Annotation
Where an affidavit of service under sub. (5) (a) did not identify the person served as the one specified in sub. (5) (a), no presumption of due service was raised. Danielson v. Brody Seating Co.
71 Wis. 2d 424,
238 N.W.2d 531.
801.11 Annotation
Where a husband could have ascertained his wife's address by contacting any one of several relatives and in-laws, the prerequisite "due diligence" for service by publication was not established, despite the sheriff's affidavit. West v. West,
82 Wis. 2d 158,
262 N.W.2d 87.
801.11 Annotation
A county civil service commission is a "body politic" under sub. (4) (a) 7. Watkins v. Milwaukee County Civil Service Comm.
88 Wis. 2d 411,
276 N.W.2d 775 (1979).
801.11 Annotation
The exact identity and job title of the person upon whom service was made was not critical to whether the person was "apparently in charge of office" under sub. (5) (a). Horrigan v. State Farm Ins. Co.
106 Wis. 2d 675,
317 N.W.2d 474 (1982).
801.11 Annotation
Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landerman v. Martin,
191 Wis. 2d 788,
530 N.W.2d 62 (Ct. App. 1995).
801.11 Annotation
Service of process on some of the partners in a general partnership is sufficient to properly commence a civil action against the partnership that will be binding on the partnership assets and the partners served. CH2M Hill, Inc. v. Black & Veatch,
206 Wis. 2d 369,
557 N.W.2d 829 (Ct. App. 1996).
801.11 Annotation
The existence of a parent subsidiary corporate relationship does not automatically establish the subsidiary as an agent of the parent for purposes of receiving process. Prom v. Sumitomo Rubber Industries, Ltd.
224 Wis. 2d 743,
592 N.W.2d 657 (Ct. App. 1999).
801.11 Annotation
A corporation whose offices were located on the 23rd floor of an office building was not properly served under sub. (5) (a) when the papers were left with a security guard in the building lobby who stated that he was authorized to accept service. Bar Code Resources v. Ameritech, Inc.
229 Wis. 2d 287,
599 N.W.2d 872 (Ct. App. 1999).
801.11 Annotation
Admission of service by an assistant attorney general or a clerk specifically designated for that purpose by the attorney general will constitute service of process within the meaning of (3). 63 Atty. Gen. 467.
801.11 Annotation
Service on a nonresident defendant's father at the father's residence was insufficient for exercise of personal jurisdiction over the nonresident, despite claimed actual notice, where no attempt was made to comply with s. 345.09. Chilcote v. Shertzer,
372 F. Supp. 86.
801.12
801.12
Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action. 801.12(1)
(1) A court of this state exercising jurisdiction in rem or quasi in rem pursuant to
s. 801.07 may affect the interests of a defendant in such action only if a summons and either a copy of the complaint or a notice of the object of the action under
sub. (2) have been served upon the defendant as follows:
801.12(1)(a)
(a) If the defendant is known, defendant may be served in the manner prescribed for service of a summons in
s. 801.11, but service in such a case shall not bind the defendant personally to the jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.
801.12(1)(b)
(b) If the defendant is unknown the summons may be served by publication thereof as a class 3 notice, under
ch. 985.
801.12(2)
(2) The notice of object of action shall be subscribed by the plaintiff or attorney and shall state the general object of the action, a brief description of all the property affected by it, if it affects specific real or personal property, the fact that no personal claim is made against such defendant, and that a copy of the complaint will be delivered personally or by mail to such defendant upon request made within the time fixed in
s. 801.09 (2). If a defendant upon whom such notice is served unreasonably defends the action the defendant shall pay costs to the plaintiff.
801.12 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 606 (1975);
1975 c. 218.
801.13
801.13
Summons; when deemed served. A summons is deemed served as follows:
801.13(1)
(1) A summons served personally upon the defendant or by substituted personal service upon another authorized to accept service of the summons for the defendant is deemed served on the day of service.
801.13(2)
(2) A summons served by publication is deemed served on the first day of required publication.
801.13 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 607 (1975).
801.14
801.14
Service and filing of pleadings and other papers. 801.14(1)(1) Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in
s. 801.11.
801.14(2)
(2) Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing. Service by facsimile is complete upon transmission. The first sentence of this subsection shall not apply to service of a summons or of any process of court or of any paper to bring a party into contempt of court.
801.14(3)
(3) In any action in which there are unusually large numbers of defendants, the court, upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
801.14(4)
(4) All papers after the summons required to be served upon a party, except as provided in
s. 804.01 (6), shall be filed with the court within a reasonable time after service. The filing of any paper required to be served constitutes a certification by the party or attorney effecting the filing that a copy of such paper has been timely served on all parties required to be served, except as the person effecting the filing may otherwise stipulate in writing.
801.14 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 607 (1975);
1975 c. 218; Sup. Ct. Order, 130 Wis. 2d xix (1986); Sup. Ct. Order, 161 Wis. 2d xvii (1991).
Effective date note
Judicial Council Note, 1986: Sub. (4) is amended by insertion of a cross-reference to s. 804.01 (6), providing that discovery documents need not be filed with the court unless the court so orders. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1991: Sub. (2) is amended to clarify that facsimile transmission can be used to serve pleadings and other papers. Such service is deemed complete upon transmission. The change is not intended to expand the permissible means of serving a summons or writ conferring court jurisdiction under s. 799.12 and ch. 801, stats. [Re Order eff. 7-1-91]
801.14 Annotation
Once an action has been commenced, service of the summons and complaint has been made on the defendant and an attorney has appeared on behalf of the defendant, an amended complaint may be served on the defendant's attorney. Bell v. Employers Mutual Casualty Co.
198 Wis. 2d 347,
541 N.W.2d 824 (Ct. App. 1995).
801.14 Annotation
A motion to dismiss with prejudice cannot be heard ex parte and should be granted only on finding egregious conduct or bad faith. Failure to obtain personal service with due diligence does not amount to egregious conduct or bad faith. Haselow v. Gauthier,
212 Wis. 2d 580,
569 N.W.2d 97 (Ct. App. 1997).
801.14 Annotation
An amended complaint that makes no reference to or incorporates any of the original complaint supercedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan,
227 Wis. 2d 478,
596 N.W.2d 358 (1999).
801.14 Annotation
A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc.
227 Wis. 2d 592,
596 N.W.2d 365 (1999).
801.145(1)(1) Except for exhibits and wills, the size of all papers filed in court shall be no larger than 8 1/2 inches by 11 inches.
801.145(2)
(2) The clerk of circuit court or register in probate shall return any paper not in conformity with
sub. (1) to the person or party attempting to file it.
801.145 History
History: Sup. Ct. Order, 120 Wis. 2d xv (1984).
801.15(1)(a)(a) In this subsection, "holiday" means any day which is a holiday provided in
s. 230.35 (4) (a) or a statewide legal holiday provided in
s. 895.20 or both, and a full day on Good Friday.
801.15(1)(b)
(b) Notwithstanding
ss. 985.09 and
990.001 (4), in computing any period of time prescribed or allowed by
chs. 801 to
847, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.
801.15(2)(a)(a) When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under
s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.
801.15(2)(b)
(b) The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.
801.15(2)(c)
(c) The time for initiating an appeal under
s. 808.04, for deciding motions after verdict under
s. 805.16 (3), and for making motions for reconsideration under
s. 805.17 (3) or for relief from judgment or order under
s. 48.46 (2) or
806.07 may not be enlarged.
801.15(4)
(4) A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.
801.15(5)
(5) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:
801.15(5)(a)
(a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
801.15(5)(b)
(b) If the notice or paper is served by facsimile transmission and such transmission is completed between 5 p.m. and midnight, 1 day shall be added to the prescribed period.
Effective date note
History: Sup. Ct. Order,
67 Wis. 2d 585, 610 (1975);
1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi (1976);
1977 c. 187 s.
135;
1977 c. 449;
1979 c. 89;
1983 a. 192 s.
304;
1985 a. 145; Sup Ct. Order, 130 Wis. 2d xi (1986);
1985 a. 332; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 160 Wis. 2d xiv (1991); Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order, No. 94-05, filed 4-27-94, eff. 7-1-94;
1997 a. 187.
801.15 Annotation
Cross-references: See s. 32.05 (4) for exception to provision for added time in case of mailing.
801.15 Annotation
Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year's eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employees, and the amendment will permit clerks to close their offices at these times. [85 Act 145]
801.15 Note
Judicial Council Committee's Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8).
801.15 Annotation
Pars. (2) (b) and (c) are independent provisions. The enlargement of time "for good cause" provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word "extended" is replaced by the word "enlarged" in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87]
Effective date note
Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91]
Effective date note
Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91]
801.15 Note
Judicial Council Note, 1994 Subsection (1) (b) is amended by excluding the last day of a time period from the computation if the clerk of courts office is closed all day.
801.15 Annotation
A court has no authority to enlarge the time in which to file a complaint. Pulchinski v. Strnad,
88 Wis. 2d 423,
276 N.W.2d 781 (1979).
801.15 Annotation
Error based on late service and filing of an affidavit was waived by the failure to object at a hearing. In re Spring Valley Meats, Inc.
94 Wis. 2d 600,
288 N.W.2d 852 (1980).
801.15 Annotation
Notice of entry of judgment was "given" under s. 806.06 (5) when it was mailed. Section 801.15 (5) was inapplicable. Bruns v. Muniz,
97 Wis. 2d 742,
295 N.W.2d 112 (Ct. App. 1980).
801.15 Annotation
The trial court abused its discretion in enlarging the time to file an answer where the answer was served 9 days after the deadline. Hedtcke v. Sentry Ins. Co.
109 Wis. 2d 461,
326 N.W.2d 727 (1982).
801.15 Annotation
Time computations under ss. 32.05 (10) (a) and 32.06 (10) are controlled by s. 801.15 (1), not s. 990.001 (4). In Matter of Petition of Elec. Power Co.
110 Wis. 2d 649,
329 N.W.2d 186 (1983).
801.15 Annotation
Service of an answer was timely under the terms of a courtesy agreement. Oostburg Bank v. United Savings,
130 Wis. 2d 4,
386 N.W.2d 53 (1986).
801.15 Annotation
Time periods under s. 805.16 may not be enlarged by showing excusable neglect under s. 801.15 (2) (a). Brookhouse v. State Farm Mut. Ins.
130 Wis. 2d 166,
387 N.W.2d 82 (Ct. App. 1986).
801.15 Annotation
The trial court lost jurisdiction to decide motions after the verdict by consecutively extending the time for its decision under sub. (2) (b). Ford Motor Co. v. Lyons,
137 Wis. 2d 397,
405 N.W.2d 354 (Ct. App. 1987).
801.15 Annotation
Because a courtesy agreement was made after default, the court did not abuse its discretion by insisting on compliance with sub. (2) (a). Clark County v. B.T.U. Structures,
144 Wis. 2d 11,
422 N.W.2d 910 (Ct. App. 1988).
801.15 Annotation
The trial court had discretion to allow a jury trial where fees under s. 814.61 (4) were not timely paid. Chitwood v. A. O. Smith Harvestore,
170 Wis. 2d 622,
489 N.W.2d 697 (Ct. App. 1992).
801.15 Annotation
While clerical error is not always excusable it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co.
196 Wis. 2d 907,
539 N.W.2d 911 (Ct. App. 1995).
801.15 Annotation
Trial courts have discretion to shorten the 5 day notice requirement for motions. Schopper v. Gehring,
210 Wis. 2d 209,
565 N.W.2d 187 (Ct. App. 1997).
801.15 AnnotationSub. (2) (a) is applicable to excusable neglect by a trial judge. State v. Elliot,
203 Wis. 2d 95,
551 N.W.2d 850 (Ct. App. 1996).
801.15 Annotation
Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller,
213 Wis. 2d 94,
570 N.W.2d 54 (Ct. App. 1997).
801.15 Annotation
Under sub. (1) (b) the last day is included in determining time periods unless it is "a day the clerk of courts office is closed." Whether or not the day is a "holiday" under sub. (1) (a) is not relevant. Klingbeil v. Perschke,
228 Wis. 2d 421,
596 N.W.2d 488 (Ct. App. 1999).
801.15 Annotation
Avoiding and obtaining relief from default judgments. Parlee, WBB April, 1985.
801.16(1)(1) The filing of pleadings and other papers with the court as required by these statutes shall be made by filing them with the clerk of circuit court. The judge may require that the person filing the papers provide a copy to the judge.
801.16(2)
(2) For papers that do not require a filing fee:
801.16(2)(a)
(a) A court may adopt a local rule, if it is approved by the chief judge, that requires the use of a plain-paper facsimile machine and permits the filing of those papers by facsimile transmission to the clerk of circuit court.
801.16(2)(b)
(b) If no rule has been adopted under
par. (a), a judge may permit a party or attorney in a specific matter to file those papers with the clerk of circuit court by facsimile transmission to a plain-paper facsimile machine.
801.16(2)(c)
(c) The party or attorney, by filing papers by facsimile transmission, certifies that permission of the judge or court for filing by facsimile transmission has been granted. Papers filed by facsimile transmission are considered filed when transmitted except that papers filed by facsimile transmission completed after regular business hours of the clerk of court's office are considered filed the next business day.
