806.04 Annotation
The use of the declaratory judgment act attempt to fix the state's responsibility to respond to a monetary claim is not authorized. Lister v. Board of Regents,
72 Wis. 2d 282,
240 N.W.2d 610 (1976).
806.04 Annotation
In a declaratory judgment action by taxpayers against a school board, legal conclusions in the complaint challenging the constitutionality of a taxing statute were permissible. Declaratory judgment actions are discussed. Tooley v. O'Connell,
77 Wis. 2d 422,
253 N.W.2d 335.
806.04 Annotation
Service on the attorney general is a jurisdictional prerequisite under sub. (11) even when the constitutional issue is collateral to or a preliminary step in the determination of the rights sought to be declared. O'Connell v. Board of Education, Jt. District #10 of Mukwonago,
82 Wis. 2d 728,
264 N.W.2d 561 (1978).
806.04 Annotation
Service under sub. (11) on the attorney general is timely if made in time to permit a defense against a claim of unconstitutionality. Town of Walworth v. Fontana-on-Geneva Lake,
85 Wis. 2d 432,
270 N.W.2d 442 (Ct. App. 1978).
806.04 Annotation
If the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but the failure to do so at the trial court 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).
806.04 Annotation
The trial court did not abuse discretion by declaring rights that would be created if a proposed release agreement were executed. Loy v. Bunderson,
107 Wis. 2d 400,
320 N.W.2d 175 (1982).
806.04 Annotation
Attorney fees are not recoverable as "costs" under sub. (10). Kremers-Urban Co. v. American Employers Ins.
119 Wis. 2d 722,
351 N.W.2d 156 (1984).
806.04 Annotation
Under sub. (11), the plaintiff must serve the joint committee for review of administrative rules within the time limits under s. 893.02. Richards v. Young,
150 Wis. 2d 549,
441 N.W.2d 742 (1989).
806.04 Annotation
The declaratory judgments act is singularly suited to test the validity of legislative action, prior to enforcement. Weber v. Town of Lincoln,
159 Wis. 2d 144,
463 N.W.2d 869 (Ct. App. 1990).
806.04 Annotation
Declaratory judgment is appropriate if: 1) there is a controversy in which a claim is asserted against a party with an interest in contesting it, 2) the controversy is between adverse parties, 3) the party seeking relief has a legally protectible interest, and 4) the issue in controversy is ripe for determination. Miller Brands-Milwaukee v. Case,
162 Wis. 2d 684,
470 N.W.2d 290 (1991).
806.04 Annotation
Supplemental relief under sub. (8) may include attorney fees incurred by an insured in establishing coverage under a policy. Elliott v. Donahue,
169 Wis. 2d 310,
485 N.W.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 Wis. 2d 74,
549 N.W.2d 690 (1996).
806.04 Annotation
By definition, ripeness required in a declaratory judgment is different from ripeness required in other actions. A plaintiff seeking a declaratory judgment need not actually suffer an injury before seeking relief under sub. (2). Nonetheless, a matter is not ripe unless the facts are sufficiently developed to allow a conclusive adjudication. Milwaukee District Council 48 v. Milwaukee County, 2001 WI 65,
244 Wis. 2d 333,
627 N.W.2d 866.
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 Wis. 2d 585, 721 (1975);
1975 c. 218;
1977 c. 187,
272.
806.05 Annotation
The provision of sub. (1m) that permit an interlocutory judgment prior to an adversary adjudication and the and sub. (9) that permits admission of the interlocutory judgment in evidence in a criminal trial are unconstitutional. State v. I, A Woman—Part II,
53 Wis. 2d 102,
191 N.W.2d 897 (1971).
806.05 Annotation
The notice procedures under sub. (1) meet due process requirements. State v. Erotomic,
87 Wis. 2d 536,
275 N.W.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 Wis. 2d 585, 724 (1975);
1975 c. 218; Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 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 sub. (5) when it was mailed. Section 801.15 (5) was inapplicable. Bruns v. Muniz,
97 Wis. 2d 742,
295 N.W.2d 11 (Ct. App. 1980).
806.06 Annotation
The last document in litigation should indicate on its face that for purposes of appeal it is a final order or judgment and that no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc.
109 Wis. 2d 490,
326 N.W.2d 240 (1982).
806.06 Annotation
Under s. 808.04 (1), notice of entry of judgment must be given within 21 days of the entry of judgment, not of signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises,
161 Wis. 2d 706,
468 N.W.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 Wis. 2d 418,
574 N.W.2d 222 (1998).
806.06 Annotation
No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857.
806.06 Annotation
An action to enforce a contractual agreement to pay attorney fees in the event of a suit between the parties to the contract was subject to the time limit under sub. (4). Purdy v. Cap Gemini America, Inc. 2001 WI App 270,
248 Wis. 2d 804,
637 N.W.2d 763.
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 Wis. 2d 585, 726 (1975);
1975 c. 218;
1997 a. 114.
806.07 Annotation
There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian,
79 Wis. 2d 374,
255 N.W.2d 564 (1977).
806.07 Annotation
A lawyer's failure to answer a complaint due to misplacing a client's papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske,
80 Wis. 2d 64,
257 N.W.2d 865 (1977).
806.07 Annotation
The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to plaintiff's counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan,
81 Wis. 2d 463,
260 N.W.2d 700 (1977).
806.07 Annotation
Section 805.17 (3) does not limit a trial court's discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. In Matter of Estate of Smith,
82 Wis. 2d 667,
264 N.W.2d 239 (1978).
806.07 Annotation
A motion filed over 6 months after the entry of judgment was not filed within a "reasonable time" under sub. (2). Rhodes v. Terry,
91 Wis. 2d 165,
280 N.W.2d 248 (1979).
806.07 Annotation
A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC,
91 Wis. 2d 462,
283 N.W.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 Wis. 2d 407,
284 N.W.2d 674 (1979).
806.07 Annotation
Neglect by both a lawyer and client was not "excusable". Charolais Breeding Ranches v. Wiegel,
92 Wis. 2d 498,
285 N.W.2d 720 (1979).
806.07 Annotation
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings and Loan Association v. Barkwood Landscaping Co., Inc.
93 Wis. 2d 190,
286 N.W.2d 581 (1980).
806.07 Annotation
Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council,
102 Wis. 2d 521,
307 N.W.2d 322 (Ct. App. 1981).
806.07 Annotation
A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. Wisconsin Public Service Corporation v. Krist,
104 Wis. 2d 381,
311 N.W.2d 624 (1981).
806.07 Annotation
New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R. A. S. v. J. M.
114 Wis. 2d 305,
338 N.W.2d 851 (Ct. App. 1983).
806.07 Annotation
Sub. (1) (h) allows relief even if the claim sounds in par. (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H.
122 Wis. 2d 536,
363 N.W.2d 419 (1985).
806.07 Annotation
The "reasonable time" requirement of sub. (2) does not apply to void judgments. Neyland v. Vorwald,
124 Wis. 2d 85,
368 N.W.2d 648 (1985).
806.07 Annotation
An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Ins. Agency, Inc.
145 Wis. 2d 66,
426 N.W.2d 41 (Ct. App. 1988).
806.07 Annotation
An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc.
145 Wis. 2d 66,
426 N.W.2d 41 (Ct. App. 1988).
806.07 Annotation
A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau,
146 Wis. 2d 101,
430 N.W.2d 579 (Ct. App. 1988).
806.07 Annotation
A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson,
157 Wis. 2d 490,
460 N.W.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 sub. (1) (h). Schwochert v. American Family Ins. Co.
166 Wis. 2d 97,
479 N.W.2d 190 (Ct. App. 1991). See also Schwochert v. American Family Insurance Co.
172 Wis. 2d 628,
494 N.W.2d 201 (1992).
806.07 Annotation
A property division may be modified under s. 806.07, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski,
172 Wis. 2d 285,
493 N.W.2d 737 (Ct. App. 1992).
806.07 Annotation
A "reasonable time" to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. Cynthia M.S. v. Michael F.C.
181 Wis. 2d 618,
511 N.W.2d 868 (Ct. App. 1994).
806.07 Annotation
A bank that failed 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 Wis. 2d 321,
525 N.W.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 while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank,
189 Wis. 2d 321,
525 N.W.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 Wis. 2d 816,
528 N.W.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 Wis. 2d 62,
533 N.W.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 & Manufacturing, Inc. v. Midland Machinery,
205 Wis. 2d 650,
556 N.W.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 Wis. 2d 72,
561 N.W.2d 810 (Ct. App. 1997).
806.07 Annotation
When the record demonstrates the circuit court's intention to send notice of an order, but it failed to do so and acknowledged the mistake, the court could effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp.
210 Wis. 2d 639,
563 N.W.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 Wis. 2d 17,
570 N.W.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 that would survive a motion for judgment on the pleadings. J.L. Phillips & Associates v. E& H Plastic Corp.
217 Wis. 2d 348,
577 N.W.2d 13 (1998).
806.07 Annotation
It was error to define inadvertence under sub. (1) (a) so that virtually any failure on the part of an attorney to predict and appreciate the potential collateral legal consequences of his her own proposed settlement language would have been at least in part from inadvertence. Milwaukee Women's Medical Service, Inc. v. Scheidler,
228 Wis. 2d 514,
598 N.W.2d 588 (Ct. App. 1999).
806.07 Annotation
A circuit court properly denies a motion for default judgment if it determines that it would be compelled to reopen the judgment if the party opposing the motion would bring a motion to vacate under s. 806.07 (1). In addition, for the preemptive use of 806.07 (1) to apply, the court must find that the party opposing the default judgment must have a meritorious defense to the underlying action. Shirk v. Bowling, Inc. 2001 WI 36,
242 Wis. 2d 153,
624 N.W.2d 375.
