813.026
813.026
Remedy against heirs and legatees; temporary injunction; receivership; judgment. In an action, in a court of record, for damages founded upon contract or upon a judgment, when it appears that the defendant is interested, as heir, legatee, or devisee, in the estate of a decedent and that the defendant's property that is liable to execution is probably insufficient to satisfy the plaintiff's claim for damages, the defendant may be enjoined by the court, pending the action, from assigning or otherwise disposing of the defendant's interest in the estate, and a receiver for the defendant's interest may be appointed. The judgment may compel the defendant to transfer sufficient of the defendant's interest to satisfy the judgment or may adjudge the transfer. The remedy given by this section is in addition to that given by proceedings supplementary to execution under
ch. 816. If a receiver is appointed, he or she shall give prompt notice of the appointment to the personal representative.
813.026 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975), 779; Stats. 1975 s. 813.026;
1993 a. 486;
2001 a. 102.
813.03
813.03
When granted defendant. A temporary injunction may also be granted on the application of the defendant, when it shall appear that the plaintiff is doing, or threatens, or is about to do, or is procuring or suffering to be done some act in violation of the defendant's rights respecting the subject of the action and tending to the defendant's injury or to render ineffectual such judgment as may be rendered in the defendant's favor.
813.03 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.03;
1993 a. 486.
813.04
813.04
Same; when granted; Sunday or holiday. The injunction may be granted at any time before judgment upon its appearing satisfactorily to the court or judge, by the complaint or answer or by affidavit that sufficient grounds exist therefor. A copy of the pleading or affidavit on which granted must be served with the injunction unless previously served. In case of exigency an injunction may be granted and may be served on Sunday or on a legal holiday.
813.04 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.04.
813.05
813.05
Notice required. 813.05(1)(1) An injunction shall not be allowed after the defendant shall have answered, unless upon notice or upon an order to show cause; but in such case the defendant may be restrained until the decision of the court or judge granting or refusing the injunction.
813.05(2)
(2) In an action against an insurance company or fraternal benefit society for an injunction or a receiver the commissioner of insurance shall be notified. Mailing a copy of such notice addressed to the commissioner of insurance at Madison, Wisconsin, shall be sufficient service.
813.05 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.05.
813.06
813.06
Security for damages. In proceedings under
s. 767.23 the court or judge may, and in all other proceedings except proceedings under
ss. 813.12,
813.122,
813.125 and
823.113 the court or judge shall, require a bond of the party seeking an injunction, with sureties, to the effect that he or she will pay to the party enjoined such damages, not exceeding an amount to be specified, as he or she may sustain by reason of the injunction if the court finally decides that the party was not entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon the party enjoined and the officer serving the same shall, within 8 days after such service, file his or her return in the office of the clerk of the court.
813.06 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.06;
1979 c. 32 s.
92 (4);
1983 a. 204;
1985 a. 234 s.
8;
1989 a. 122.
813.06 Annotation
An order of the trial court limiting the amount of annual compensation that the corporation could pay the individual defendants until further order was an injunction, and the trial court was required to demand a bond. Becker v. Becker,
66 Wis. 2d 731,
225 N.W.2d 884 (1975).
813.07
813.07
Assessment of damages; bill of particulars; costs. Upon an assessment of the damages caused by an injunction the defendant may be required to serve upon the plaintiff and the plaintiff's sureties, within such time and in such manner as the court or referee shall direct, a bill of particulars. The plaintiff or the sureties may within 10 days after such service offer in writing to permit the court or referee to assess the defendant's damages at a specified sum together with the costs of such proceeding incurred up to the time of such offer. If such offer be not accepted in writing within 5 days after it is made, it shall be considered withdrawn, and cannot be given in evidence. If the defendant fails to obtain a more favorable assessment of damages, the defendant cannot recover costs, but must pay the costs of the opposite party from the time of the offer.
813.07 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.07;
1993 a. 486.
813.07 Annotation
Increased construction costs were recoverable even though not in existence when the injunction was issued. Byrnes v. Metz,
53 Wis. 2d 627,
193 N.W.2d 675 (1972).
813.08
813.08
Injunction, defendant may be heard before enjoined. The court or judge may, before granting the injunction, make an order requiring cause to be shown why the injunction should not be granted, and the defendant may in the meantime be restrained.
813.08 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.08.
813.11
813.11
Injunction, additional security. The party enjoined may, upon notice, apply for additional security and may combine such application with one to vacate or modify the injunction, and the presiding judge may require a further bond, in a sum and with sureties to be approved by the presiding judge, as a condition of the continuance of the injunction.
813.11 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 760 (1975); Stats. 1975 s. 813.11;
1993 a. 486.
813.12
813.12
Domestic abuse restraining orders and injunctions. 813.12(1)(ad)
(ad) "Caregiver" means an individual who is a provider of in-home or community care to an individual through regular and direct contact.
813.12(1)(ag)
(ag) "Dating relationship" means a romantic or intimate social relationship between 2 adult individuals but "dating relationship" does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context. A court shall determine if a dating relationship existed by considering the length of the relationship, the type of the relationship, and the frequency of the interaction between the adult individuals involved in the relationship.
813.12(1)(am)
(am) "Domestic abuse" means any of the following engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver's care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:
813.12(1)(am)1.
1. Intentional infliction of physical pain, physical injury or illness.
813.12(1)(b)
(b) "Family member" means a spouse, a parent, a child or a person related by blood or adoption to another person.
813.12(1)(c)
(c) "Household member" means a person currently or formerly residing in a place of abode with another person.
813.12(1)(cg)
(cg) "Reasonable grounds" means more likely than not that a specific event has occurred or will occur.
813.12(1)(cj)
(cj) "Regular and direct contact" means face-to-face physical proximity to an individual that is planned, scheduled, expected, or periodic.
813.12(1)(d)
(d) "Tribal court" means a court established by any federally recognized Wisconsin Indian tribe or band, except the Menominee Indian tribe of Wisconsin.
813.12(1)(e)
(e) "Tribal order or injunction" means a temporary restraining order or injunction issued by a tribal court under a tribal domestic abuse ordinance adopted in conformity with this section.
813.12(2)
(2) Commencement of action and response. 813.12(2)(a)(a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under
sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under
sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under
s. 801.11 (1) (a) or
(b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or family court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under
ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction.
813.12 Note
NOTE: Par. (a) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(2)(b)
(b) A petition may be filed in conjunction with an action affecting the family commenced under
ch. 767, but commencement of an action affecting the family or any other action is not necessary for the filing of a petition or the issuance of a temporary restraining order or an injunction. A judge or circuit court commissioner may not make findings or issue orders under
s. 767.23 or
767.24 while granting relief requested only under this section.
Section 813.06 does not apply to an action under this section. The respondent may respond to the petition either in writing before or at the hearing on the issuance of the injunction or orally at that hearing.
813.12(2m)
(2m) Two-part procedure. Procedure for an action under this section is in 2 parts. First, if the petitioner requests a temporary restraining order the court shall issue or refuse to issue that order. Second, the court shall hold a hearing under
sub. (4) on whether to issue an injunction, which is the final relief. If the court issues a temporary restraining order, the order shall set forth the date for the hearing on an injunction. If the court does not issue a temporary restraining order, the date for the hearing shall be set upon motion by either party.
813.12(3)(a)(a) A judge or circuit court commissioner shall issue a temporary restraining order ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in
par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12 Note
NOTE: Par. (a) (intro.) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(3)(a)1.
1. The petitioner submits to the judge or circuit court commissioner a petition alleging the elements set forth under
sub. (5) (a).
813.12(3)(a)2.
2. The judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12 Note
NOTE: Subd. 2. is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(3)(aj)
(aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. The judge or family [circuit] court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.12 Note
NOTE: Par. (aj) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct term. Corrective legislation is pending.
813.12(3)(am)
(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under
par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.12(3)(b)
(b) Notice need not be given to the respondent before issuing a temporary restraining order under this subsection. A temporary restraining order may be entered only against the respondent named in the petition.
813.12(3)(c)
(c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under
sub. (4). The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.
813.12 Note
NOTE: Par. (c) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(3)(d)
(d) The judge or circuit court commissioner shall advise the petitioner of the right to serve the respondent the petition by published notice if with due diligence the respondent cannot be served as provided under
s. 801.11 (1) (a) or
(b). The clerk of circuit court shall assist the petitioner with the preparation of the notice and filing of the affidavit of printing.
813.12(4)(a)(a) A judge or circuit court commissioner may grant an injunction ordering the respondent to refrain from committing acts of domestic abuse against the petitioner, to avoid the petitioner's residence, except as provided in
par. (am), or any other location temporarily occupied by the petitioner or both, or to avoid contacting or causing any person other than a party's attorney or a law enforcement officer to contact the petitioner unless the petitioner consents to that contact in writing, or any combination of these remedies requested in the petition, or any other appropriate remedy not inconsistent with the remedies requested in the petition, if all of the following occur:
813.12 Note
NOTE: Par. (a) (intro.) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(4)(a)2.
2. The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction.
813.12(4)(a)3.
3. After hearing, the judge or circuit court commissioner finds reasonable grounds to believe that the respondent has engaged in, or based upon prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
813.12 Note
NOTE: Subd. 3. is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c).
813.12(4)(aj)
(aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or family [circuit ] court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other court order that bars contact between the parties, nor due to the necessity of verifying the terms of an existing court order.
813.12 Note
NOTE: Par. (aj) is shown as affected by two acts of the 2001 legislature and as merged by the revisor under s. 13.93 (2) (c). The bracketed language indicates the correct term. Corrective legislation is pending.
813.12(4)(am)
(am) If the petitioner and the respondent are not married, the respondent owns the premises where the petitioner resides and the petitioner has no legal interest in the premises, in lieu of ordering the respondent to avoid the petitioner's residence under
par. (a) the judge or circuit court commissioner may order the respondent to avoid the premises for a reasonable time until the petitioner relocates and shall order the respondent to avoid the new residence for the duration of the order.
813.12(4)(b)
(b) The judge or circuit court commissioner may enter an injunction only against the respondent named in the petition. No injunction may be issued under this subsection under the same case number against the person petitioning for the injunction. The judge or circuit court commissioner may not modify an order restraining the respondent based solely on the request of the respondent.
813.12(4)(c)1.1. An injunction under this subsection is effective according to its terms, for the period of time that the petitioner requests, but not more than 4 years. An injunction granted under this subsection is not voided if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.
813.12(4)(c)2.
2. When an injunction granted for less than 4 years expires, the court shall extend the injunction if the petitioner states that an extension is necessary to protect him or her. This extension shall remain in effect until 4 years after the date the court first entered the injunction.
813.12(4)(c)4.
4. Notice need not be given to the respondent before extending an injunction under
subd. 2. The petitioner shall notify the respondent after the court extends an injunction under
subd. 2.
813.12(4m)
(4m) Notice of restriction on firearm possession; surrender of firearms. 813.12(4m)(a)(a) An injunction issued under
sub. (4) shall do all of the following:
813.12(4m)(a)1.
1. Inform the respondent named in the petition of the requirements and penalties under
s. 941.29.
813.12(4m)(a)2.
2. Except as provided in
par. (ag), require the respondent to surrender any firearms that he or she owns or has in his or her possession to the sheriff of the county in which the action under this section was commenced, to the sheriff of the county in which the respondent resides or to another person designated by the respondent and approved by the judge or circuit court commissioner. The judge or circuit court commissioner shall approve the person designated by the respondent unless the judge or circuit court commissioner finds that the person is inappropriate and places the reasons for the finding on the record. If a firearm is surrendered to a person designated by the respondent and approved by the judge or circuit court commissioner, the judge or circuit court commissioner shall inform the person to whom the firearm is surrendered of the requirements and penalties under
s. 941.29 (4).
813.12(4m)(ag)
(ag) If the respondent is a peace officer, an injunction issued under
sub. (4) may not require the respondent to surrender a firearm that he or she is required, as a condition of employment, to possess whether or not he or she is on duty.
813.12(4m)(am)1.1. When a respondent surrenders a firearm under
par. (a) 2. to a sheriff, the sheriff who is receiving the firearm shall prepare a receipt for each firearm surrendered to him or her. The receipt shall include the manufacturer, model and serial number of the firearm surrendered to the sheriff and shall be signed by the respondent and by the sheriff to whom the firearm is surrendered.
813.12(4m)(am)2.
2. The sheriff shall keep the original of a receipt prepared under
subd. 1. and shall provide an exact copy of the receipt to the respondent. When the firearm covered by the receipt is returned to the respondent under
par. (b), the sheriff shall surrender to the respondent the original receipt and all of his or her copies of the receipt.
813.12(4m)(am)3.
3. A receipt prepared under
subd. 1. is conclusive proof that the respondent owns the firearm for purposes of returning the firearm covered by the receipt to the respondent under
par. (b).
813.12(4m)(am)4.
4. The sheriff may not enter any information contained on a receipt prepared under
subd. 1. into any computerized or direct electronic data transfer system in order to store the information or disseminate or provide access to the information.
813.12(4m)(aw)
(aw) A sheriff may store a firearm surrendered to him or her under
par. (a) 2. in a warehouse that is operated by a public warehouse keeper licensed under
ch. 99. If a sheriff stores a firearm at a warehouse under this paragraph, the respondent shall pay the costs charged by the warehouse for storing that firearm.
813.12(4m)(b)
(b) A firearm surrendered under
par. (a) 2. may not be returned to the respondent until a judge or circuit court commissioner determines all of the following:
813.12(4m)(b)1.
1. That the injunction issued under
sub. (4) has been vacated or has expired and not been extended.
813.12(4m)(b)2.
2. That the person is not prohibited from possessing a firearm under any state or federal law or by the order of any federal court or state court, other than an order from which the judge or circuit court commissioner is competent to grant relief.
813.12(4m)(c)
(c) If a respondent surrenders a firearm under
par. (a) 2. that is owned by a person other than the respondent, the person who owns the firearm may apply for its return to the circuit court for the county in which the person to whom the firearm was surrendered is located. The court shall order such notice as it considers adequate to be given to all persons who have or may have an interest in the firearm and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the firearm returned. If the court returns a firearm under this paragraph, the court shall inform the person to whom the firearm is returned of the requirements and penalties under
s. 941.29 (4).
813.12(5)(a)(a) The petition shall allege facts sufficient to show the following:
813.12(5)(a)1.
1. The name of the petitioner and that the petitioner is the alleged victim.
813.12(5)(a)2.
2. The name of the respondent and that the respondent is an adult.
813.12(5)(a)3.
3. That the respondent engaged in, or based on prior conduct of the petitioner and the respondent may engage in, domestic abuse of the petitioner.
