.... Plaintiff
By .... Plaintiff's Attorney
799.16 History
History: Sup. Ct. Order,
67 Wis. 2d 575, 764 (1975);
1975 c. 218;
1977 c. 449 s.
497;
1979 c. 32 ss.
66,
92 (16);
1979 c. 110 s.
60 (7);
1979 c. 176; Stats. 1979 s. 799.16;
1987 a. 208;
1993 a. 213,
246,
491; Sup. Ct. Order No.
95-10, 195 Wis. 2d xv (1996);
1997 a. 250.
799.20
799.20
Answer; counterclaim and cross complaint. 799.20(1)(1)
Pleading on return date or adjourned date. On the return date of the summons or any adjourned date thereof the defendant may answer, move to dismiss under
s. 802.06 (2) or otherwise respond to the complaint.
799.20(2)
(2) Cross complaint. In the case of more than one defendant, any cross complaint by one defendant against another who has appeared shall be made or filed on the return date or any adjourned date.
799.20(4)
(4) Inquiry of defendant who appears on return date. If the defendant appears on the return date of the summons or any adjourned date thereof, the court or circuit court commissioner shall make sufficient inquiry of the defendant to determine whether the defendant claims a defense to the action. If it appears to the court or circuit court commissioner that the defendant claims a defense to the action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action, unless the parties stipulate otherwise or the action is subject to immediate dismissal.
799.20 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 765 (1975);
1977 c. 449;
1979 c. 32 s.
66; Stats. 1979 s. 799.20;
1987 a. 208;
2001 a. 61.
799.205
799.205
Substitution of judge. 799.205(1)
(1) Any party to a small claims action or proceeding may file a written request with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed on the return date of the summons or within 10 days after the case is scheduled for trial. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith mail a copy thereof to all parties to the action and to the original judge.
799.205(2)
(2) After the written request has been filed, the original judge shall have no further jurisdiction in the action or proceeding except to determine if the request is correct as to form and timely filed. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is correct as to form and timely filed, the named judge shall be disqualified and shall promptly request assignment of another judge under
s. 751.03.
799.205(3)
(3) Except as provided in
sub. (4), no party is entitled to file more than one such written request in any one action, and any single such request shall not name more than one judge. For purposes of this subsection, parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one such party of a written request.
799.205(4)
(4) If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under
sub. (1) within 20 days after the entry of the judgment or decision of the appellate court whether or not another request was filed prior to the time the appeal or writ of error was taken.
799.206
799.206
Return date proceedings before court commissioner. 799.206(1)(1) In counties establishing a circuit court commissioner position under
s. 757.68 (5m), all actions and proceedings commenced under this chapter shall be returnable before a circuit court commissioner appointed under
s. 757.68 (1) and
SCR chapter 75. In any other county, a circuit court commissioner may conduct return date proceedings if delegated such authority under
s. 757.69 (1) (d).
799.206(2)
(2) Judgment on failure to appear may be entered by the circuit court commissioner or the clerk upon the return date as provided in
s. 799.22.
799.206(3)
(3) When all parties appear in person or by their attorneys on the return date in an eviction, garnishment or replevin action and any party claims that a contest exists, the matter shall be forthwith scheduled for a hearing, to be held as soon as possible before a judge.
799.206(4)
(4) Except as provided in
sub. (3), the circuit court commissioner shall hear all matters using the procedures set forth in
s. 799.207.
799.206 History
History: 1977 c. 345;
1979 c. 32 ss.
66,
92 (16); Stats. 1979 s. 799.206;
1987 a. 208;
2001 a. 61.
799.207
799.207
Proceedings before circuit court commissioner. 799.207(1)(a)(a) Any circuit court commissioner assigned to assist in small claims matters may hold a conference with the parties or their attorneys or both on the return date, examine pleadings and identify issues.
799.207(1)(b)
(b) Except as provided in
par. (e), a decision shall be rendered by the circuit court commissioner on the return date if there is time available for a hearing, the parties do not intend to call witnesses, and the parties agree to such a hearing. If for any of the reasons stated in this paragraph, the matter cannot be heard on the return date, an adjourned date shall be set.
799.207(1)(d)
(d) A record of the proceeding shall be made and shall be limited to the time and location of the hearing, the parties, witnesses and attorneys present and the decision.
799.207(1)(e)
(e) If the circuit court commissioner cannot reach a decision on the return or adjourned date, the commissioner shall mail the decision to each party within 30 days of the date of the hearing.
799.207(2)
(2) The circuit court commissioner's decision shall become a judgment 11 days after rendering, if oral, and 16 days after mailing, if written, except that:
799.207(2)(b)
(b) Either party may file a demand for trial within 10 days from the date of an oral decision or 15 days from the date of mailing of a written decision to prevent the entry of the judgment.
799.207(3)(a)(a) There is an absolute right to have the matter heard before the court if the requirements of this section are complied with.
799.207(3)(b)
(b) The circuit court commissioner shall give each of the parties a form and instructions which shall be used for giving notice of an election to have the matter heard by the court.
799.207(3)(c)
(c) The demand for trial must be filed with the court and mailed to the other parties within 10 days from the date of an oral decision or 15 days from the date of mailing of a written decision. Mailing of the notice and proof of such mailing is the responsibility of the party seeking review.
799.207(3)(d)
(d) Notice of a demand for trial may also be given in writing and filed by either of the parties at the time of an oral decision.
799.207(4)
(4) Following the timely filing of a demand for trial, the court shall mail a trial date to all of the parties.
799.207(5)
(5) A timely filing of a demand for trial shall result in a new trial before the court on all issues between the parties.
799.207 History
History: 1977 c. 345;
1979 c. 32 s.
66;
1979 c. 110; Stats. 1979 s. 799.207; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 208;
2001 a. 61.
799.207 Note
Judicial Council Note, 1988: The substance of sub. (5) (b) is retained in s. 799.208. [Re Order effective Jan. 1, 1988]
799.208
799.208
Pretrial conference. In any action under this chapter, the pretrial conference may be conducted by telephone as provided in
s. 807.13 (3) at the discretion of the court and may be conducted on the trial date.
799.208 History
History: Sup. Ct. Order, 141 Wis. 2d xiii (1987).
799.209
799.209
Procedure. At any trial, hearing or other proceeding under this chapter:
799.209(1)
(1) The court or circuit court commissioner shall conduct the proceeding informally, allowing each party to present arguments and proofs and to examine witnesses to the extent reasonably required for full and true disclosure of the facts.
799.209(2)
(2) The proceedings shall not be governed by the common law or statutory rules of evidence except those relating to privileges under
ch. 905 or to admissibility under
s. 901.05. The court or circuit court commissioner shall admit all other evidence having reasonable probative value, but may exclude irrelevant or repetitious evidence or arguments. An essential finding of fact may not be based solely on a declarant's oral hearsay statement unless it would be admissible under the rules of evidence.
799.209(3)
(3) The court or circuit court commissioner may conduct questioning of the witnesses and shall endeavor to ensure that the claims or defenses of all parties are fairly presented to the court or circuit court commissioner.
799.209(4)
(4) The court or circuit court commissioner shall establish the order of trial and the procedure to be followed in the presentation of evidence and arguments in an appropriate manner consistent with the ends of justice and the prompt resolution of the dispute on its merits according to the substantive law.
799.21(1)(1)
Determination of method of trial. In the absence of a jury demand, trial shall be to the court.
799.21(2)
(2) Trial by court. If trial is to the court, the case may, with the consent of all the parties, be tried on the return day.
799.21(3)(a)(a) Any party may, upon payment of the fees prescribed in
ss. 814.61 (4) and
814.62 (3) (e), file a written demand for trial by jury. If no party demands a trial by jury, the right to trial by jury is waived forever. In eviction actions, the demand shall be filed at or before the time of joinder of issue; in all other actions within 20 days thereafter.
799.21(3)(b)
(b) In counties in which a circuit court commissioner is assigned to assist in small claims matters, except in eviction actions which shall be governed by
par. (a), demand for trial by jury shall be made at the time a demand for trial is filed. If the party requesting a trial does not request a jury trial, any other party may request a jury trial by filing the request with the court and mailing copies to all other parties within 15 days from the date of mailing of the demand for trial or the date on which personal notice of demand is given, whichever is applicable. If no party demands a trial by jury, the right to trial by jury is waived forever. The fees prescribed in
ss. 814.61 (4) and
814.62 (3) (e) shall be paid when the demand for a trial by jury is filed.
799.21(4)
(4) Jury procedure. If there is a demand for a trial by jury, the judge or circuit court commissioner shall place the case on the trial calendar and a jury of 6 persons shall be chosen as provided in
s. 345.43 (3) (b). The parties shall proceed as if the action had originally been begun as a proceeding under
chs. 801 to
807, except that the court is not required to provide the jury with one complete set of written instructions under
s. 805.13 (4) and the requirements for appearance by the parties shall be governed by
s. 799.06 (2).
799.21 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 776 (1975);
1977 c. 345,
449;
1979 c. 32 s.
66;
1979 c. 128; Stats. 1979 s. 799.21;
1981 c. 317;
1987 a. 208;
2001 a. 61.
799.21 Annotation
Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis,
104 Wis. 2d 466,
312 N.W.2d 731 (1981).
799.213
799.213
Arbitration actions. Chapter 788 applies to actions relating to the confirmation, vacation, modification or correction of an arbitration award.
799.213 History
History: 1991 a. 163.
799.215
799.215
Trial by court, findings and judgment. Upon a trial of an issue of fact by the court, its decision shall be given either orally immediately following trial or in writing and filed with the clerk within 60 days after submission of the cause, and shall state separately the facts found and the conclusions of law thereon; and judgment shall be entered accordingly.
799.215 History
History: 1979 c. 32 s.
66; Stats. 1979 s. 799.215.
799.22
799.22
Judgment on failure to appear or answer. 799.22(1)(1)
When plaintiff fails to appear. If the plaintiff fails to appear on the return date or on the date set for trial, the court may enter a judgment for the defendant dismissing the action, on motion of the defendant or on its own motion.
799.22(2)
(2) When defendant fails to appear. If the defendant fails to appear on the return date or on the date set for trial, the court may enter a judgment upon due proof of facts which show the plaintiff entitled thereto.
799.22(3)
(3) Plaintiff's proof where action arose on contract for recovery of money. In any action arising on contract for the recovery of money only, if the defendant fails to appear and answer or to appear at the time set for trial, the plaintiff may file with the judge or clerk a verified complaint, or an affidavit of the facts, or may offer sworn testimony or other evidence to the clerk or judge, and either may enter judgment thereon.
799.22(4)
(4) Pleading in lieu of appearance. 799.22(4)(a)(a) Any circuit court may by rule permit a defendant to join issue in any of the actions specified in
s. 799.01 without appearing on the return date by answering, either by mail or by telephone, within such time and in such manner as the rule permits.
799.22(4)(am)
(am) If the defendant is a nonresident of this state, the circuit court shall adopt a rule to permit the defendant to join issue in any of the actions specified in
s. 799.01 without appearing on the return date by answering by mail, in such manner as the rule permits, and if the court adopts a rule under
par. (a) to permit the defendant to join issue without appearing on the return date by answering by telephone, then the defendant shall also be permitted to join issue by answering by telephone, in such manner as the rule permits.
799.22(4)(b)
(b) If a court adopts a rule under
par. (a), then all of the following apply:
799.22(4)(b)1.
1. The existence of the rule shall be deemed an appearance by the plaintiff in that court on the return date for purposes of
sub. (1).
799.22(4)(b)2.
2. A proper answer by the defendant under the rule shall be deemed an appearance by the defendant in that court on the return date for purposes of
sub. (2).
799.22(4)(b)3.
3. Any summons under
s. 799.05 (6) or
(7) or
799.12 (6) (c) and any notice under
s. 799.16 (4) shall notify the defendant of the option to answer without appearing in court on the return date and the methods of answering permitted by the rule.
799.22 History
History: 1979 c. 32 s.
66; Stats. 1979 s. 799.22;
1987 a. 208;
1989 a. 56.
799.225
799.225
Dismissal of pending actions. The court may without notice dismiss any action or proceeding, in which issue has not been joined, which is not otherwise disposed by judgment or stipulation and order within 6 months from the original return date.
799.225 History
History: 1979 c. 32 s.
66; Stats. 1979 s. 799.225.
799.24(1)(1)
Entry of judgment or order; notice of entry thereof. When a judgment or an order is rendered, the judge, circuit court commissioner or clerk of circuit court shall immediately enter it in the court record and note the date thereof which shall be the date of entry of judgment or order. The clerk of circuit court, except in municipal and county forfeiture actions, shall mail a notice of entry of judgment to the parties or their attorneys at their last-known address within 5 days of its entry. Upon payment of the exact amount of the fee prescribed in
s. 814.62 (3) (c), the clerk of circuit court shall enter the judgment in the judgment and lien docket.
799.24(2)
(2) Applicability of s. 806.15. Section 806.15 shall apply with respect to judgments entered in the judgment and lien docket.
799.24(3)
(3) Stipulated dismissal. Prior to the entry of judgment, upon stipulation of the parties to a schedule for compliance with the stipulation, the court or circuit court commissioner may enter a stipulated judgment of dismissal in lieu thereof. Any such judgment may be vacated without notice to the obligated party, and the unsatisfied portion thereof entered, upon application by the prevailing party and proof by affidavit of noncompliance with the terms of the stipulation.
799.24 Annotation
When written notice of entry of judgment showed an incorrect date of entry, the time to appeal under s. 808.04 (1) was not shortened to 45 days. Mock v. Czemierys,
113 Wis. 2d 207,
336 N.W.2d 188 (Ct. App. 1983).
799.24 Annotation
A judgment for payment of a forfeiture can be docketed, accumulates interest at 12%, and may be enforced through collection remedies available in other civil proceedings.
OAG 2-95.
799.25
799.25
Costs. The clerk shall without notice to the parties tax and insert in the judgment as costs in favor of the party recovering judgment the following:
799.25(5)
(5) Garnishee fee. Any garnishee fee paid.
799.25(6)
(6) Service fees and other charges. Lawful fees or charges paid to the sheriff, constable or other person for serving the summons or any other document, and charges paid to the sheriff in connection with the execution of any writ of restitution.
799.25(7)
(7) Witness fees. Amounts necessarily paid out for witness fees, including travel, as prescribed in
s. 814.67. The fees for witnesses and their travel shall not exceed 50% of the amount recovered unless an order is entered specifying the amount to be paid in excess of 50% and the reasons therefor.
