CHAPTER 808
APPEALS AND WRITS OF ERROR
808.03 Appeals to the court of appeals.
808.04 Time for appeal to the court of appeals.
808.07 Relief pending appeal.
808.075 Permitted court actions pending appeal.
808.08 Further proceedings in trial court.
808.09 Reversal, affirmance or modification of judgment.
808.10 Review by the supreme court.
808.11 Printing specifications.
808.01
808.01
Definitions. In this chapter:
808.01(1)
(1) "Appeal" means a review in an appellate court by appeal or writ of error authorized by law of a judgment or order of a circuit court.
808.01(2)
(2) "Appellate court" means the supreme court under
ch. 751 or the court of appeals under
ch. 752.
808.01 History
History: 1977 c. 187;
1991 a. 189.
808.01 Annotation
A party that accepts the benefits of a judgment does not waive the right to take an appeal which does not involve a reversal of that part of the judgment under which the benefit was received. Estreen v. Bluhm,
79 Wis. 2d 142,
255 N.W.2d 473.
808.02
808.02
Writ of error. A writ of error may be sought in the court of appeals.
808.02 History
History: 1977 c. 187.
808.03
808.03
Appeals to the court of appeals. 808.03(1)
(1)
Appeals as of right. A final judgment or a final order of a circuit court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment, order or disposition that disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding, and that is one of the following:
808.03(1)(c)
(c) Recorded in docket entries in traffic regulation cases prosecuted in circuit court if a person convicted of a violation may be ordered to pay a forfeiture.
808.03(1)(d)
(d) Recorded in docket entries in municipal ordinance violation cases prosecuted in circuit court.
808.03(2)
(2) Appeals by permission. A judgment or order not appealable as a matter of right under
sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
808.03(2)(a)
(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;
808.03(2)(b)
(b) Protect the petitioner from substantial or irreparable injury; or
808.03(2)(c)
(c) Clarify an issue of general importance in the administration of justice.
808.03 History
History: 1977 c. 187;
1979 c. 192; Sup. Ct. Order, 130 Wis. 2d xix (1986);
1995 a. 139,
224;
1997 a. 35.
808.03 Cross-reference
Cross-reference: See s.
767.15 (2) for appeals involving child support and maintenance.
808.03 Note
Judicial Council Note, 1979: Sub. (1) is amended to modify the statutory definition of the final judgment or final order that may be appealed as a matter of right to the court of appeals. Most types of cases decided in circuit court have a final judgment or order entered with the office of clerk of court. Because of the volume of traffic regulation and municipal ordinance violation cases prosecuted in circuit court, the prevailing custom in Wisconsin counties is to only record the dispositions of those cases in docket entries. Requiring counties to meet the present statutory requirement in s. 808.03 (1) for the entry of a final judgment or order in all cases for purposes of having an appealable matter is unnecessarily burdensome and costly. The term "traffic regulation cases" refers to only those traffic violation cases in which the penalty is a civil forfeiture. [Bill 396-S]
Effective date note
Judicial Council Note, 1986: Sub. (1) is amended to clarify that docket entries in small claims and other ch. 799 cases may be final orders from which an appeal may be taken as of right. See 1979 Judicial Council Note to sub. (1). [Re Order eff. 7-1-86]
808.03 Annotation
An appeal cannot be taken from an order before it is entered. Ramsthal Advertising Agency v. Energy Miser, Inc.
90 Wis. 2d 74,
279 N.W.2d 491 (Ct. App. 1979).
808.03 Annotation
The test to determine whether a decision is a final order or judgment is whether the trial court contemplated that any additional formal document would be entered with respect to the matter covered in the decision. Frederick v. City of Janesville,
92 Wis. 2d 685,
285 N.W.2d 655 (1979).
808.03 Annotation
A pretrial order denying a motion to dismiss a 2nd trial on double jeopardy grounds is a final order appealable under sub. (2). State v. Jenich,
94 Wis. 2d 74,
288 N.W.2d 114 (1980).
808.03 Annotation
An order waiving jurisdiction over a juvenile is appealable under sub. (2). State ex rel. A. E. v. Green Lake County Cir. Ct.
94 Wis. 2d 98,
288 N.W.2d 125 (1980).
808.03 Annotation
Under s. 808.03 (2), both the prosecution and defense may seek permissive appeal of nonfinal orders. State v. Rabe,
96 Wis. 2d 48,
291 N.W.2d 809 (1980).
808.03 Annotation
An order denying a motion to dismiss for lack of personal jurisdiction is appealable by permission under s. 808.03 (2). Heaton v. Independent Mortuary Corp.
97 Wis. 2d 379,
294 N.W.2d 15 (1980).
808.03 Annotation
Orders relating to venue are appealable by permission under sub. (2). Aparacor, Inc. v. DILHR,
97 Wis. 2d 399,
293 N.W.2d 545 (1980).
808.03 Annotation
An order enjoining a town from conducting an incorporation referendum under s. 60.81 terminated the only matter in litigation with respect to the town, although ch. 66 incorporation proceedings had not been finally determined by the order. In re Incorporation of Town of Fitchburg,
98 Wis. 2d 635,
299 N.W.2d 199 (1980).
808.03 Annotation
A court order setting aside an administrative order and remanding the case to the administrative agency disposed of the entire matter in litigation and was appealable as of right. Bearns v. DILHR,
102 Wis. 2d 70,
306 N.W.2d 22 (1981).
808.03 Annotation
When a counterclaim for abuse of process, severed for trial, was not yet determined, a judgment dismissing the complaint was not appealable under sub. (1). Brownsell v. Klawitter,
102 Wis. 2d 108,
306 N.W.2d 41 (1981).
808.03 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).
808.03 Annotation
The trial court did not have jurisdiction to award attorney fees after the filing of a notice of appeal of another issue. Hengel v. Hengel,
120 Wis. 2d 522,
355 N.W.2d 846 (Ct. App. 1984).
808.03 Annotation
A court commissioner's order under s. 757.69 (1) dismissing a criminal proceeding was not a "final order" under sub. (1). State v. Trongeau,
135 Wis. 2d 188,
400 N.W.2d 12 (Ct. App. 1986).
808.03 Annotation
An appellate court has no jurisdiction to review the denial of a postconviction motion if there is no final written order denying the motion on file in the clerk of court's office. State v. Malone,
136 Wis. 2d 250,
401 N.W.2d 563 (1987).
808.03 Annotation
A criminal defendant's right to appeal continues after death, regardless of the cause of death. State v. McDonald,
144 Wis. 2d 531,
424 N.W.2d 411 (1988).
808.03 Annotation
A judgment resolving the merits of a 42 USC 1983 action is final and appealable under sub. (1) although the issues of attorney fees remains unresolved. ACLU v. Thompson,
155 Wis. 2d 442,
455 N.W.2d 268 (Ct. App. 1990).
808.03 Annotation
The circuit court's retained jurisdiction in board of review certiorari actions under s. 70.47 (13) does not affect the finality of an order for appeal purposes. Steenberg v. Town of Oakfield,
157 Wis. 2d 674,
461 N.W.2d 148 (Ct. App. 1990).
808.03 Annotation
An appeal of an oral revocation order under s. 343.305 (10) may not be taken under sub. (1). State v. Borowski,
164 Wis. 2d 730,
476 N.W.2d 316 (Ct. App. 1991).
808.03 Annotation
When an appeal is taken as a matter of right, only the final document need be reduced to writing. Nonfinal rulings need not be reduced to writing to be eligible for review under an appeal of a subsequent final order. Jacquart v. Jacquart,
183 Wis. 2d 372,
515 N.W.2d 539 (Ct. App. 1994).
808.03 Annotation
Like a judgment of foreclosure and sale in the case a mortgage, a judgment of strict foreclosure of a land contract is a final judgment that must be appealed from within the time required under s. 808.04. Hackman v. Behm,
207 Wis. 2d 439,
558 N.W.2d 905 (Ct. App. 1996).
808.03 Annotation
An order on the merits of an action is final for purposes of appeal even though a request for litigation expenses is pending. Laube v. City of Owen,
209 Wis. 2d 12,
561 N.W.2d 785 (Ct. App. 1997).
808.03 Annotation
A party may waive the right to appeal in a civil case if the party has caused or induced a judgment to be entered or has stipulated to the entry of judgment. By stipulating to the entry of a conditional judgment, a party could not obtain a mandatory appeal of an interlocutory order. Cascade Mountain, Inc. v. Capitol Indemnity Corp.
212 Wis. 2d 265,
569 N.W.2d 45 (Ct. App. 1997).
808.03 Annotation
Absconding from a juvenile treatment center was a rejection by the juvenile of the legitimate means afforded for challenging the court order and resulted in the forfeiture of the right to appeal. State v. Lamontae D.M.
223 Wis. 2d 503,
589 N.W.2d 415 (Ct. App. 1998).
808.03 Annotation
The event that triggers the appeal period for a traffic regulation case is the recording of the disposition in the circuit court docket and not the entry of a separate judgment or order in the office of the clerk of circuit court. City of Sheboygan v. Flores,
229 Wis. 2d 242,
598 N.W.2d 307 (Ct. App. 1999).
808.03 Annotation
The court of appeals shall grant all petitions for interlocutory appeal arising from a circuit court summary judgment order denying a state official's claim of qualified immunity under 42 USC 1983 if the order is based on an issue of law. Whether to grant such a petition is discretionary when it arises from a motion to dismiss. Powell v. Cooper, 2001 WI 10,
241 Wis. 2d 153,
622 N.W.2d 265.
808.03 Annotation
In the family law context, an order resolving the merits of a child support dispute, but not an attorney's fee issue, is final within the meaning of sub. (1). Campbell v. Campbell, 2003 WI App 8,
259 Wis. 2d 676,
659 N.W.2d 106,
02-0426.
808.03 Annotation
A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law, and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Insurance Co. 2004 WI App 104, ___ Wis. 2d ___,
684 N.W.2d 139,
03-2284.
808.03 Annotation
When an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intended it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court. If an order for judgment meets this criterion, it is a final order. Any historic distinction between an order and a judgment is not dispositive. Harder v. Pfitzinger, 2004 WI 102, ___ Wis. 2d ___,
682 N.W.2d 398,
03-1817.
808.03 Annotation
Wisconsin Court of Appeals Appellate Jurisdiction. Klein and Leavell. Wis. Law. Sept. 1991.
808.03 Annotation
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
808.03 Annotation
Understanding the New Rules of Appellate Procedure. Stephens. Wis. Law. July 2001.
808.04
808.04
Time for appeal to the court of appeals. 808.04(1)
(1)
Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in
s. 806.06 (5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law. Time limits for seeking review of a nonfinal judgment or order are established in
s. 809.50.
808.04(1m)
(1m) An appeal by a record subject under
s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from.
808.04(2)
(2) An appeal under
s. 227.60 or
799.445 shall be initiated within 15 days after entry of judgment or order appealed from.
808.04(3)
(3) Except as provided in
subs. (4) and
(7), an appeal in a criminal case or a case under
ch. 48,
51,
55 or
938 shall be initiated within the time period specified in
s. 809.30.
808.04(4)
(4) Except as provided in
sub. (7m), an appeal by the state in either a criminal case under
s. 974.05 or a case under
ch. 48 or
938 shall be initiated within 45 days of entry of the judgment or order appealed from.
808.04(6)
(6) When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party's death, whichever is later. If no personal representative qualifies within 60 days after the party's death, any appellant may have a personal representative appointed under
s. 856.07 (2).
808.04(7)
(7) An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by
s. 809.30 (2) (b) within 40 days of the date of entry of the judgment or order appealed from. Notwithstanding
s. 809.82 (2) (b), this time may not be enlarged.
808.04(7m)
(7m) An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by
s. 809.107 (2) within 30 days after the date of entry of the judgment or order appealed from. Notwithstanding
s. 809.82 (2) (b), this time period may not be enlarged.
808.04(8)
(8) If the record discloses that the judgment or order appealed from was entered after the notice of appeal was filed, the notice of appeal shall be treated as filed after such entry and on the day thereof.
808.04 History
History: 1977 c. 187;
1979 c. 32 s.
92 (9), (14);
1979 c. 89,
221;
1981 c. 152;
1981 c. 314 ss.
130,
146;
1983 a. 183,
219;
1983 a. 491 s.
23;
1985 a. 182 s.
57; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 136 Wis. 2d xxv (1987);
1989 a. 56 s.
259;
1989 a. 192;
1991 a. 39; Sup. Ct. Order, 168 Wis. 2d xix (1992);
1993 a. 395;
1995 a. 77,
275;
1997 a. 133; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2003 a. 47.
808.04 Note
NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.
808.04 Cross-reference
Cross-reference: See s.
809.50 for time to file permissive appeals.
808.04 Note
Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children's code cases. [Bill 151-S]
Effective date note
Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]
Effective date note
Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]
808.04 Note
Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]
808.04 Note
Judicial Council Note, 2001: The word "final" has been inserted before "judgment or order" in sub. (1). The amendment specifies that the 45- or 90-day time limit applies in appeals from final orders and the 14-day time limit in s. 809.50 applies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001]
808.04 Annotation
Notice under sub. (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Insurance Co.
90 Wis. 2d 76,
279 N.W.2d 492 (Ct. App. 1979).
808.04 Annotation
When a written notice of entry of judgment showed the incorrect date of entry, the time to appeal was not shortened under sub. (1). Mock v. Czemierys,
113 Wis. 2d 207,
336 N.W.2d 188 (Ct. App. 1983).
808.04 Annotation
To shorten the appeal period under sub. (1), a formal, captioned, and signed notice of entry of judgment stating the date of entry must be filed and served on an opposing party within 21 days of the entry date. Soquet v. Soquet,
117 Wis. 2d 553,
345 N.W.2d 401 (1984).
