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),
95-3266.
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),
96-0827.
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 638,
563 N.W.2d 519 (1997),
96-1883.
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),
96-3258.
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),
96-3151.
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),
98-1139.
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,
98-3634.
806.07 Annotation
The existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. A contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. State v. Williams,
2001 WI App 155,
246 Wis. 2d 722,
631 N.W.2d 623,
00-2365.
806.07 Annotation
A circuit court may properly invoke this section to open the property division provisions of a divorce judgment incorporating a confirmed arbitrated award. Franke v. Franke,
2004 WI 8,
268 Wis. 2d 360,
674 N.W.2d 832,
01-3316.
806.07 Annotation
The competing interests of finality and fairness coalesce when considering sub. (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J.
2004 WI App 58,
271 Wis. 2d 242,
677 N.W.2d 684,
03-1228.
806.07 Annotation
Lack of competency is not jurisdictional and does not result in a void judgment. Accordingly, it is not true that a motion for relief from judgment grounds of lack of circuit court competency may be made at any time. If a judgment is entered by a circuit court lacking competency and a competency challenge has been waived, sub. (1) (h) may provide an avenue for relief in an extraordinary case. Village of Trempealeau v. Mikrut,
2004 WI 79,
273 Wis. 2d 76,
681 N.W.2d 190,
03-0534.
806.07 Annotation
In determining whether the party seeking relief from a default judgment has proven excusable neglect, the court should consider whether the moving party has acted promptly to remedy the default judgment, whether the default judgment imposes excessive damages, and whether vacatur of the judgment is necessary to prevent a miscarriage of justice. The court must also consider that the law favors the finality of judgments, and the reluctance to excuse neglect when too easy a standard for the vacatur of default judgments would reduce deterrence to litigation-delay. Mohns, Inc. v. TCF National Bank,
2006 WI App 65,
292 Wis. 2d 243,
714 N.W.2d 245,
05-0705.
806.07 Annotation
The burden of proof is on the party seeking to set aside or vacate a default judgment when the question of proper service is involved. The evidence necessary to set aside the judgment is evidence sufficient to allow a reviewing court to determine that the circuit court's findings of fact were contrary to the great weight and clear preponderance of the credible evidence. Richards v. First Union Securities, Inc.
2006 WI 55,
290 Wis. 2d 620,
714 N.W.2d 913,
04-1877.
806.07 Annotation
The discretionary authority afforded the circuit courts by sub. (1) (h) to vacate final judgments is to be used sparingly. The court should consider several factors, including whether: 1) the judgment was the result of the conscientious, deliberate, well-informed choice of the claimant; 2) the claimant received the effective assistance of counsel; 3) relief is sought from a judgment to which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; 4) there is a meritorious defense to the claim; and 5) there are intervening circumstances making it inequitable to grant relief. Allstate Insurance v. Brunswick Corporation,
2007 WI App 221,
305 Wis. 2d 400,
740 N.W.2d 888,
06-1705.
806.07 Annotation
The vigor with which the supreme court denounces a previous decision is not a crucial consideration and itself does not demonstrates unique and extraordinary circumstances under sub. (1) (h). While a circuit court should consider factors bearing upon the equities of the case, the mind set of the supreme court is not such a factor. Allstate Insurance v. Brunswick Corporation,
2007 WI App 221,
305 Wis. 2d 400,
740 N.W.2d 888,
06-1705.
806.07 Annotation
Sub. (1) (h) does not require a finding of excusable neglect. A circuit court is to consider the 5 interest of justice factors in determining whether extraordinary circumstances are present under sub. (1) (h) such that relief from a judgment, including a default judgment, is appropriate. Miller v. The Hanover Insurance Co.
2010 WI 75,
326 Wis. 2d 640,
785 N.W.2d 493,
08-1494.
806.07 Annotation
A circuit court may not award a new trial to a convicted criminal defendant in the interest of justice under sub. (1) (g) or (h). Sections 974.02 and 974.06 were written to provide the primary statutory means of postconviction, appeal, and post-appeal relief for convicted criminal defendants. State v. Henley,
2010 WI 97,
328 Wis. 2d 544,
787 N.W.2d 350,
08-0697.
806.07 Annotation
When the circuit court's clear and acknowledged mistake deprives a party of its right to appeal, this section may provide a basis for vacating and reentering the order or judgment. Werner v. Hendree,
2011 WI 10,
331 Wis. 2d 511,
795 N.W.2d 423,
08-2045.
806.08
806.08
Stay of proceedings to enforce a judgment. 806.08(1)(1) Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal.
Subsection (3) governs the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
806.08(2)
(2) In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial, or to alter or amend a judgment, or of a motion for relief from a judgment or order.
806.08(3)
(3) When an appeal is taken from an interlocutory or final judgment or appealable order granting, dissolving or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
806.08(4)
(4) When an appeal is taken, the appellant may obtain a stay in accordance with
s. 808.07.
806.08(5)
(5) This section does not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.
806.08(6)
(6) When a court has rendered a final judgment under the conditions stated in
s. 806.01 (2), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
806.08 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 726 (1975); Sup. Ct. Order, 67 Wis. 2d vii (1975);
1977 c. 187 s.
135;
1979 c. 110 s.
60 (9).
806.09
806.09
Restitution in case of reversed judgment; purchaser for value. 806.09(1)(1) If any judgment or part of a judgment is collected and such judgment is afterwards set aside or reversed, the trial court shall order the same to be restored with interest from the time of the collection, but in case a new trial is ordered the party who has collected the judgment may retain the same pending the new trial, upon giving a bond in such sum and with such sureties as the court shall order, conditioned for the restoration of the amount collected with interest from the time of collection. The order of restitution may be obtained upon proof of the facts upon notice and motion and may be enforced as a judgment. Nothing herein shall affect or impair the right or title of a purchaser for value in good faith without notice.
806.09(2)
(2) Whenever in a civil action on appeal to the court of appeals or the supreme court the appellant fails to stay execution and pending the appeal the sheriff or other officer collects all or any part of the judgment appealed from, the officer collecting the judgment shall deposit the amount collected, less the officer's fees, with the clerk of the court out of which execution issued. In case of reversal on the appeal, restitution may be made in accordance with
sub. (1). In case of affirmance the clerk shall pay over the deposit to the judgment creditor on the filing of the remittitur from the court of appeals or the supreme court.
806.09 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 728 (1975);
1975 c. 218;
1977 c. 187.
806.10
806.10
Judgment and lien docket. 806.10(1)
(1) At the time of entry of a judgment directing in whole or in part the payment of money, or a judgment naming a spouse under
s. 806.15 (4), and upon payment of the exact amount of the fee prescribed in
s. 814.61 (5) (b), the clerk of circuit court shall enter the judgment in the judgment and lien docket, arranged alphabetically, including all of the following:
806.10(1)(a)
(a) The full name and place of residence of each judgment debtor and of the spouse or former spouse of the judgment debtor if the spouse is named in a judgment described under
s. 806.15 (4). If the judgment or judgment and lien docket fails to give the place of residence of the judgment debtor or the judgment debtor's spouse or former spouse, the validity of the judgment is not affected thereby, but the judgment creditor may at any time file with the clerk of circuit court an affidavit stating, on knowledge or information and belief, the information. The clerk of circuit court shall thereupon enter the facts according to the affidavit in the judgment and lien docket, noting the date and time of the entry.
806.10(1)(b)
(b) The name of the judgment creditor, in like manner.
806.10(1)(c)
(c) The name of the attorney for the judgment creditor, if stated in the record.
806.10(1)(f)
(f) The amount of the debt, damages or other sum of money recovered, with the costs.
806.10(1m)
(1m) If a judgment is against several persons, the clerk of circuit court shall enter the judgment, in accordance with the procedure under
sub. (1) in the judgment and lien docket under the name of each person against whom the judgment was rendered.
806.10(2)
(2) Whenever any judgment entered in the judgment and lien docket is reversed and the remittitur filed, the clerk of circuit court shall enter "reversed on appeal" on the judgment and lien docket.
806.10(3)
(3) Every clerk of circuit court who enters a judgment or decree and enters upon the judgment and lien docket a date or time other than that of its actual entry or neglects to enter the same at the proper time shall be liable to the party injured.
806.10 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 729 (1975);
1975 c. 218;
1983 a. 303;
1987 a. 151,
393;
1991 a. 134;
1995 a. 224;
1997 a. 27.
806.10 Annotation
Neglect to docket a judgment at the proper time under sub. (3) means to neglect to enter judgment immediately upon the entry of the judgment. An action against a clerk of court for incorrectly docketing a judgment under sub. (3) is subject to the 6-year statute of limitations under s. 893.93 (1) (a). South Milwaukee Savings Bank v. Barrett,
2000 WI 48,
234 Wis. 2d 733,
611 N.W.2d 448,
97-3759.
806.10 Annotation
Sub. (1) does not impose a ministerial duty on a clerk of circuit court to include the address of a judgment debtor on the judgment docket when the judgment does not include that information. Commercial Mortgage & Finance Co. v. Clerk of the Circuit Court, Walworth County,
2004 WI App 203,
276 Wis. 2d 846,
689 N.W.2d 74,
03-3338.
806.10 Annotation
The clerk of court did not violate sub. (1) by failing to docket a foreclosure judgment. The ensuing deficiency judgment, not the foreclosure judgment, constitutes the only judgment eligible for docketing under sub. (1). Commercial Mortgage & Finance Co. v. Clerk of the Circuit Court, Walworth County,
2004 WI App 203,
276 Wis. 2d 846,
689 N.W.2d 74,
03-3338.
806.11
806.11
Delinquent income or franchise tax lien. 806.11(1)(a)
(a) The name of each delinquent income or franchise tax debtor, with place of residence if it is stated in the warrant.
806.11(1)(d)
(d) The amount of delinquent income or franchise taxes with interest, penalties and costs as set forth in the warrant.
806.11(2)
(2) If a warrant provided by
s. 71.74 (14),
71.91 (5), or
71.93 (8) (b) 5. is against several persons, the warrant shall be entered, in accordance with the procedure under
sub. (1), in the judgment and lien docket under the name of each person against whom the warrant was issued.
806.11 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 730 (1975);
1975 c. 218;
1985 a. 145;
1987 a. 312 s.
17;
1991 a. 39;
1995 a. 224;
2009 a. 28.
806.115
806.115
Filing of duplicate copy of warrant. The department of revenue may file in any county a duplicate copy of a warrant filed under
s. 71.74 (14),
71.91 (5), or
71.93 (8) (b) 5. and the clerk of circuit court shall enter the duplicate copy on the judgment and lien docket as provided in
s. 806.11. When so entered, the duplicate copy shall have the same legal effect as the warrant filed under
s. 71.91 (5).
806.12
806.12
Transcript of municipal judge's judgment. 806.12(1)(1) The clerk of circuit court shall, upon the production of a duly certified transcript of a judgment for more than $10, exclusive of costs, rendered by any municipal judge in the county, enter the judgment in the judgment and lien docket of the court in the manner prescribed in
s. 806.10. When the transcript shows that execution was stayed in the municipal court, with the name of the surety thereof, the clerk of circuit court shall enter the judgment against the surety as well as the judgment debtor, and the surety shall be bound thereby as a judgment debtor and the surety's property shall be subject to lien and be liable on the lien to the same extent as the surety's principal.
806.12(2)
(2) Every judgment entered in the judgment and lien docket under
sub. (1), from the time of the filing of the transcript of the judgment, shall be considered the judgment of the circuit court. The judgment shall be equally under the control of the circuit court and municipal court. The judgment shall be carried into execution, both as to the principal judgment debtor and the debtor's surety, if any, in the same manner and with like effect as judgments of the circuit court, except that no action can be brought upon the judgment as a judgment of the circuit court nor execution issued on that judgment after the expiration of the period of the lien of the judgment on real estate provided by
s. 806.15.
806.12 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 731 (1975);
1975 c. 218;
1977 c. 305 s.
64;
1995 a. 224.
806.13
806.13
Judgments entered in other counties. When a judgment is entered as provided in
ss. 806.10,
806.12 and
806.24, or a warrant is entered as provided in
s. 108.22 (2) (a), it may be entered in any other county, upon filing with the clerk of circuit court of that county a transcript from the original judgment and lien docket, certified to be a true copy by the clerk of the original circuit court.
806.13 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 731 (1975);
1975 c. 224;
1987 a. 38 s.
136;
1995 a. 224.
806.14
806.14
Enforcement of real estate judgment in other counties. If a judgment affecting real property is rendered in any county other than that in which the property is situated, the clerk of circuit court of the county where the property is situated shall, upon production of a duly certified copy of the judgment and payment of the fee specified by
s. 814.61 (5) (b), file and enter the judgment in the judgment and lien docket. The judgment may be enforced in the circuit court for either county.
806.14 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 732 (1975); Sup. Ct. Order, 109 Wis. 2d xiii (1982);
1995 a. 224.
806.14 Note
Judicial Council Note, 1982: This section is amended by deleting provision for a trial court to order the transfer of all papers, entries, orders and minutes in an action affecting real property to the clerk of circuit court for the county in which the property is situated. The revised statute retains provision for the docketing of a certified copy of the judgment by the clerk of circuit court for the county where the property is situated, giving that court concurrent jurisdiction to enforce the judgment. [Re Order effective Jan. 1, 1983]
806.15
806.15
Lien of judgment; priority; statute may be suspended. 806.15(1)(1) Every judgment properly entered in the judgment and lien docket showing the judgment debtor's place of residence shall, for 10 years from the date of entry, be a lien on all real property of every person against whom the judgment is entered which is in the county where the judgment is rendered, except homestead property that is exempt from execution under
s. 815.20, and which the person has at the time of the entry or which the person acquires thereafter within the 10-year period.
806.15(2)(a)(a) When the collection of the judgment or the sale of the real estate upon which the judgment is a lien shall be delayed by law, and the judgment creditor shall have caused to be entered on the judgment and lien docket "enforcement suspended by injunction" or otherwise, as the case may be, and that entry is dated, the time period of the delay after the date of the entry shall not be considered part of the 10-year period under
sub. (1).
806.15(2)(b)
(b) Whenever an appeal from any judgment shall be pending and the bond or deposit requisite to stay execution has been given or made, the trial court may, on motion, after notice to the judgment creditor, on such terms as the trial court shall see fit, direct the clerk of circuit court to enter on the judgment and lien docket that the judgment is "secured on appeal" and the judgment shall cease, during the pendency of the appeal, to be a lien.
806.15(3)
(3) If the judgment is affirmed on appeal or the appeal is dismissed the clerk of circuit court shall, on the filing of the remittitur, enter on the judgment and lien docket "lien restored by affirmance" or "lien restored by dismissal of appeal" with the date of the entry, and the lien shall be restored. Similar entries may be made with like effect upon the judgment and lien docket of the judgment in any other county upon filing with the clerk of circuit court a transcript from the original judgment and lien docket.
806.15(4)
(4) A lien under this section does not attach to property that is held, as defined in
s. 766.01 (9), by a person who is the spouse or former spouse of a judgment debtor and that is not held by the judgment debtor, unless the spouse of the judgment debtor is a named defendant in the action for which judgment is rendered, the spouse of the judgment debtor is named in the judgment itself, the obligation is determined an obligation described in
s. 766.55 (2) and any of the following applies:
806.15(4)(a)
(a) With respect to property held by the spouse of the judgment debtor when the judgment is entered in the judgment and lien docket, the property is expressly determined available under
s. 766.55 to satisfy the obligation.
806.15(4)(b)
(b) The property is acquired after the judgment is entered in the judgment and lien docket.
806.15(5)
(5) If a judgment lien has attached under
sub. (4) (b) to property that is exempt under
s. 815.205 (1) from execution on the judgment lien and execution has not been issued in connection with the enforcement of the judgment lien, a person with an ownership interest in the property may proceed under
s. 806.04 for declaratory relief if, within 10 days after demand, the owner of the judgment fails to execute a recordable release of the property from the judgment lien.
806.15 History
History: 1973 c. 211; Sup. Ct. Order, 67 Wis. 2d 585, 732 (1975);
1975 c. 200;
1985 a. 37,
135,
137,
145,
332;
1987 a. 393;
1991 a. 301;
1995 a. 224.
806.15 Annotation
A judgment creditor who obtains a lien on land by docketing a judgment is not a purchaser for value, and the fact that a judgment creditor may be without notice of a prior equitable interest when the judgment is docketed is not sufficient to give the lien priority over that of a prior equitable mortgagee. The failure of notice does not inure to the benefit of a subsequent judgment creditor as he or she does not part with any value in reliance on the misleading state of the debtor's title. IFC Collateral Corp. v. Commercial Units, Inc.
51 Wis. 2d 41,
186 N.W.2d 214 (1971).
806.15 Annotation
In bankruptcy proceedings, the lien of a judgment obtained before discharge was not extinguished by discharge and could be applied to the proceeds of the bankruptcy sale of the real estate to which the lien attached. In re Tillman Produce Co., Inc.
396 F. Supp. 500 (1975).
806.15 Annotation
Creditor's rights; after-acquired property. Norman, 56 MLR 137.
