CHAPTER 803
CIVIL PROCEDURE — PARTIES
803.01 Parties plaintiff and defendant; capacity.
803.02 Joinder of claims and remedies.
803.03 Joinder of persons needed for just and complete adjudication.
803.04 Permissive joinder of parties.
803.045 Actions to satisfy spousal obligations.
803.05 Third-party practice.
803.06 Misjoinder and nonjoinder of parties.
803.10 Substitution of parties.
Ch. 803 Note
NOTE: Chapter 803 was created by Sup. Ct. Order,
67 Wis. 2d 585, 638 (1975), which contains Judicial Council Committee notes explaining each section. Statutes prior to the 1983-84 edition also have these notes.
803.01
803.01
Parties plaintiff and defendant; capacity. 803.01(1)(1)
Real party in interest. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
803.01(2)
(2) Representatives. A personal representative, executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.
803.01(3)
(3) Infants or incompetent persons. 803.01(3)(a)(a)
Appearance by guardian or guardian ad litem. If a party to an action or proceeding is a minor, or if the court has reason to believe that a party is mentally incompetent to have charge of the party's affairs, the party shall appear by an attorney, by the general guardian of the party's property who may appear by attorney or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases where the minor or incompetent has no general guardian of property, or where the general guardian fails to appear and act on behalf of the ward or incompetent, or where the interest of the minor or incompetent is adverse to that of the general guardian. Except as provided in
s. 807.10, if the general guardian does appear and act and the interests of the general guardian are not adverse to the minor or incompetent, a guardian ad litem shall not be appointed. Except as provided in
s. 879.23 (4), where the interests of the minor or mentally incompetent person are represented by an attorney of record the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem.
803.01(3)(b)1.1. The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a family court commissioner of the county in actions to establish paternity that are before the family court commissioner.
803.01(3)(b)2.
2. When the plaintiff is a minor 14 years of age or over, upon the plaintiff's application or upon the state's application under
s. 767.045 (1) (c); or if the plaintiff is under that age or is mentally incompetent, upon application of the plaintiff's guardian or of a relative or friend or upon application of the state under
s. 767.045 (1) (c). If the application is made by a relative, friend or the state, notice thereof must first be given to the guardian if the plaintiff has one in this state; if the plaintiff has none, then to the person with whom the minor or mentally incompetent resides or who has the minor or mentally incompetent in custody.
803.01(3)(b)3.
3. When the defendant is a minor 14 years of age or over, upon the defendant's application made within 20 days after the service of the summons or other original process; if the defendant is under that age or neglects to so apply or is mentally incompetent, then upon the court's own motion or upon the application of any other party or any relative or friend or the defendant's guardian upon such notice of the application as the court directs or approves.
803.01(3)(b)4.
4. If the appointment, for a plaintiff or a defendant, is after the commencement of the action, it shall be upon motion entitled in the action. If the appointment is for a plaintiff and is made before the action is begun, the petition for appointment shall be entitled in the name of the action proposed to be brought by the minor or incompetent, and the appointment may be made before the summons is served. Upon the filing of a petition for appointment before summons, the clerk may impose the fee required for the commencement of an action, but in that event no additional commencement fee may be imposed when the summons is filed.
803.01(3)(b)5.
5. The motion or petition under
subd. 4. shall state facts showing the need and authority for the appointment. The hearing on the motion or petition under
subd. 4., if made by a minor or mentally incompetent person for such person's guardian ad litem, may be held without notice and the appointment made by order. If the motion or petition is made for a minor or mentally incompetent who is an adverse party, the hearing shall be on notice.
803.01(3)(b)6.
6. If a compromise or a settlement of an action or proceeding to which an unrepresented minor or mentally incompetent person is a party is proposed, a guardian ad litem shall be appointed, upon petition in a special proceeding, to protect the interest of the minor or incompetent even though commencement of an action is not proposed. Any compromise or settlement shall be subject to
s. 807.10.
803.01(3)(c)
(c)
Procedure where minor or incompetent not represented. 803.01(3)(c)1.1. If at any time prior to the entry of judgment or final order, the court finds that either a minor, or a person believed by the court to be mentally incompetent to have charge of his or her affairs, has not been represented in the action or proceeding as provided in
par. (a), there shall be no further proceedings until a guardian ad litem is appointed. In making such appointment, the court shall fix a reasonable time within which the guardian ad litem may move to vacate or strike any order entered or action taken during the period when a guardian ad litem was required; and as to all matters to which objection is not made, the guardian ad litem and the ward shall be bound. Any such motion by a guardian ad litem shall be granted as a matter of right.
803.01(3)(c)2.
2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or mentally incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in
par. (a) the judgment or order shall be vacated on motion of:
803.01(3)(c)2.a.
a. The minor or mentally incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or
803.01(3)(c)2.b.
b. The personal representative of such minor or mentally incompetent at any time prior to the expiration of one year after the death of the minor or mentally incompetent.
803.01 Annotation
The county in which proceedings are brought must pay the fee of the appointed guardian ad litem. Romasko v. Milwaukee,
108 Wis. 2d 32,
321 N.W.2d 123 (1982).
803.02
803.02
Joinder of claims and remedies. 803.02(1)
(1) A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or 3rd party claim, may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party.
803.02(2)
(2) Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the 2 claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to the plaintiff, without first having obtained a judgment establishing the claim for money.
803.02 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 642 (1975);
1975 c. 218.
803.03
803.03
Joinder of persons needed for just and complete adjudication. 803.03(1)(1)
Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if:
803.03(1)(a)
(a) In the person's absence complete relief cannot be accorded among those already parties; or
803.03(1)(b)
(b) The person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
803.03(1)(b)1.
1. As a practical matter impair or impede the person's ability to protect that interest; or
803.03(1)(b)2.
2. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his or her claimed interest.
803.03(2)
(2) Claims arising by subrogation, derivation and assignment. 803.03(2)(a)(a)
Joinder of related claims. A party asserting a claim for affirmative relief shall join as parties to the action all persons who at the commencement of the action have claims based upon subrogation to the rights of the party asserting the principal claim, derivation from the principal claim, or assignment of part of the principal claim. For purposes of this section, a person's right to recover for loss of consortium shall be deemed a derivative right. Any public assistance recipient or any estate of such a recipient asserting a claim against a 3rd party for which the public assistance provider has a right of subrogation or assignment under
s. 49.89 (2) or
(3) shall join the provider as a party to the claim. Any party asserting a claim based upon subrogation to part of the claim of another, derivation from the rights or claim of another, or assignment of part of the rights or claim of another shall join as a party to the action the person to whose rights the party is subrogated, from whose claim the party derives his or her rights or claim, or by whose assignment the party acquired his or her rights or claim.
803.03(2)(b)
(b)
Options after joinder. Any party joined pursuant to
par. (a) may 1. participate in the prosecution of the action, 2. agree to have his or her interest represented by the party who caused the joinder, or 3. move for dismissal with or without prejudice. If the party joined chooses to participate in the prosecution of the action, the party joined shall have an equal voice with other claimants in such prosecution. Except as provided in
par. (bm), if the party joined chooses to have his or her interest represented by the party who caused the joinder, the party joined shall sign a written waiver of the right to participate which shall express consent to be bound by the judgment in the action. Such waiver shall become binding when filed with the court, but a party may withdraw the waiver upon timely motion to the judge to whom the case has been assigned with notice to the other parties. A party who represents the interest of another party and who obtains a judgment favorable to such other party may be awarded reasonable attorneys fees by the court. If the party joined moves for dismissal without prejudice as to his or her claim, the party shall demonstrate to the court that it would be unjust to require the party to prosecute the claim with the principal claim. In determining whether to grant the motion to dismiss, the court shall weigh the possible prejudice to the movant against the state's interest in economy of judicial effort.
803.03(2)(bm)
(bm)
Joinders because of implication of medical assistance. If the department of health and family services is joined as a party pursuant to
par. (a) and
s. 49.89 (2) because of the provision of benefits under
subch. IV of ch. 49, the department of health and family services need not sign a waiver of the right to participate in order to have its interests represented by the party that caused the joinder. If the department of health and family services makes no selection under
par. (b), the party causing the joinder shall represent the interests of the department of health and family services and the department of health and family services shall be bound by the judgment in the action.
803.03(2)(c)
(c)
Scheduling and pretrial conferences. At the scheduling conference and pretrial conference, the judge to whom the case has been assigned shall inquire concerning the existence of and joinder of persons with subrogated, derivative or assigned rights and shall make such orders as are necessary to effectuate the purposes of this section. If the case is an action to recover damages based on alleged criminally injurious conduct, the court shall inquire to see if an award has been made under
ch. 949 and if the department of justice is subrogated to the cause of action under
s. 949.15.
803.03(3)
(3) Determination by court whenever joinder not feasible. If any such person has not been so joined, the judge to whom the case has been assigned shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If a person as described in
subs. (1) and
(2) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
803.03(3)(a)
(a) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
803.03(3)(b)
(b) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
803.03(3)(c)
(c) Whether a judgment rendered in the person's absence will be adequate; and
803.03(3)(d)
(d) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
803.03(4)
(4) Pleading reasons for nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in
subs. (1) and
(2) who are not joined, and the reasons why they are not joined.
803.03(5)
(5) Exception of class actions. This section is subject to
s. 803.08.
803.03 Annotation
Where the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but failure to do so at the trial level was cured by service at the appellate level. In Matter of Estate of Fessler,
100 Wis. 2d 437,
302 N.W.2d 414 (1981).
803.03 Annotation
"May" as used in sub. (2) (b) is mandatory, requiring a subrogated party to choose one of the options or risk dismissal with prejudice. Radloff v. General Cas. Co.
147 Wis. 2d 14,
432 N.W.2d 597 (Ct. App. 1988).
803.03 Annotation
The mere presence of a party does not constitute "participation" under sub. (2) (b). A subrogated insurer who exercises none of the 3 options under sub. (2) (b must pay its fair share of attorney fees and costs if it has notice of and does nothing to assist in the prosecution of the action. Ninaus v. State Farm Mutual Automobile Insurance Co.
220 Wis. 2d 869,
584 N.W.2d 545 (Ct. App. 1998).
803.03 Annotation
Failure to comply with the technical requirement under sub. (2) (b) that a joined party must file a written waiver of the right to participate in the trial does not prevent the joined party's assertion that it had a representation agreement with the joining party. Gustafson v. Physicians Insurance Co.
223 Wis. 2d 164,
588 N.W.2d 363 (Ct. App. 1998).
803.04
803.04
Permissive joinder of parties. 803.04(1)
(1)
Permissive joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
803.04(2)(a)(a) In any action for damages caused by negligence, any insurer which has an interest in the outcome of such controversy adverse to the plaintiff or any of the parties to such controversy, or which by its policy of insurance assumes or reserves the right to control the prosecution, defense or settlement of the claim or action, or which by its policy agrees to prosecute or defend the action brought by plaintiff or any of the parties to such action, or agrees to engage counsel to prosecute or defend said action or agrees to pay the costs of such litigation, is by this section made a proper party defendant in any action brought by plaintiff in this state on account of any claim against the insured. If the policy of insurance was issued or delivered outside this state, the insurer is by this paragraph made a proper party defendant only if the accident, injury or negligence occurred in this state.
803.04(2)(b)
(b) If an insurer is made a party defendant pursuant to this section and it appears at any time before or during the trial that there is or may be a cross issue between the insurer and the insured or any issue between any other person and the insurer involving the question of the insurer's liability if judgment should be rendered against the insured, the court may, upon motion of any defendant in the action, cause the person who may be liable upon such cross issue to be made a party defendant to the action and all the issues involved in the controversy determined in the trial of the action or any 3rd party may be impleaded as provided in
s. 803.05. Nothing herein contained shall be construed as prohibiting the trial court from directing and conducting separate trials on the issue of liability to the plaintiff or other party seeking affirmative relief and on the issue of whether the insurance policy in question affords coverage. Any party may move for such separate trials and if the court orders separate trials it shall specify in its order the sequence in which such trials shall be conducted.
803.04(3)
(3) Actions affecting marital property. In an action affecting the interest of a spouse in marital property, as defined under
ch. 766, a spouse who is not a real party in interest or a party described under
s. 803.03 may join in or be joined in the action.
803.04(4)
(4) Separate trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.
803.04 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 646 (1975);
1975 c. 218;
1985 a. 37.
803.04 Cross-reference
Cross-references: As to insurers being made defendants, see s.
632.24. See s.
775.10, providing that the state may be made a party in an action to quiet title to land.
803.04 Annotation
In an action for injuries allegedly sustained as a result of 3 separate surgical procedures performed by 2 unassociated doctors residing in different counties, separate places of trial were required and joinder of separate causes of action was improper. Voight v. Aetna Casualty & Surety Co.
80 Wis. 2d 376,
259 N.W.2d 85.
803.04 Annotation
Where an insurer made a good-faith request for a bifurcated trial under sub. (2) (b) on issue of coverage, trial court erred in finding insurer's refusal to settle was tort of bad faith. Mowry v. Badger State Mut. Cas.
129 Wis. 2d 496,
385 N.W.2d 171 (1986).
803.04 Annotation
That a policy is one of indemnity rather than liability does not prevent direct action against insurer. Decade's Monthly Fund v. Whyte & Hirschboeck,
173 Wis. 2d 665,
495 N.W.2d 335 (1993).
803.04 Annotation
Joinder of one tortfeasor who causes an injury and a successive tortfeasor who aggravates the injury is permitted by this section. Kluth v. General Casualty Co.
178 Wis. 2d 808,
505 N.W.2d 442 (Ct. App. 1993).
803.04 Annotation
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule, the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc.
200 Wis. 2d 512,
546 N.W.2d 870 (Ct. App. 1996).
