801.08 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975);
1979 c. 110 s.
60 (7); Sup. Ct. Order, 101 Wis. 2d xi.
801.08 Note
Judicial Council Note, 1981: The last sentence of sub. (1) has been repealed because it erroneously implied that non-final orders deciding jurisdictional questions were appealable as of right. This has not been true since ch. 187, Laws of 1977 repealed s. 817.33 (3) (f), Wis. Stats. (1975) and created s. 808.03 (1), Wis. Stats. (1977). Heaton v. Independent Mortuary Corp.
97 Wis. 2d 379,
294 N.W.2d 15 (1980). [Re Order effective July 1, 1981]
801.08 Annotation
A jurisdiction dispute may not be resolved on motion. Merco Distributing Corp. v. O & R Engines, Inc.
71 Wis. 2d 792,
239 N.W.2d 97 (1976).
801.08 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).
801.08 Annotation
An order denying a motion to dismiss based on jurisdiction under s. 801.08 (1) is not a final order and is not appealable as of right under s. 808.03 (1). Grulkowski v. DOT
97 Wis. 2d 615,
294 N.W.2d 43 (Ct. App. 1980).
801.08 Annotation
The trial court erred in denying plaintiff's request for an evidentiary hearing. The plaintiff has no burden to prove jurisdictional facts prior to a hearing. Henderson v. Milex Products, Inc.
125 Wis. 2d 141,
370 N.W.2d 291 (Ct. App. 1985).
801.08 Annotation
Conducting pretrial discovery does not constitute "going to the merits of the case" under sub. (1) and does not waive an objection raised under s. 802.06 (2). Honeycrest Farms v. Brave Harvestore Systems,
200 Wis. 2d 256,
546 N.W.2d 192 (Ct. App. 1996),
95-1789.
801.09
801.09
Summons, contents of. The summons shall contain:
801.09(1)
(1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, the standardized description of the case classification type and associated code number as approved by the director of state courts and the names and addresses of the parties to the action, plaintiff and defendant.
801.09(2)
(2) A direction to the defendant summoning and requiring defendant to serve upon the plaintiff's attorney, whose address shall be stated in the summons, either an answer to the complaint if a copy of the complaint is served with the summons or a demand for a copy of the complaint. The summons shall further direct the defendant to serve the answer or demand for a copy of the complaint within the following periods:
801.09(2)(a)1.1. Except as provided in
subds. 2. and
3., within 20 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.
801.09(2)(a)2.
2. If the defendant is the state or an officer, agent, employee, or agency of the state, as to that defendant, within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.
801.09(2)(a)3.
3. Within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant, if any of the following applies:
801.09(2)(a)3.b.
b. Any cause of action raised in the complaint is founded in tort.
801.09(2)(b)
(b) Within 40 days after a date stated in the summons, exclusive of such date, if no such personal or substituted personal service has been made, and service is made by publication. The date so stated in the summons shall be the date of the first required publication.
801.09(3)
(3) A notice that in case of failure to serve an answer or demand for a copy of the complaint within the time fixed by
sub. (2), judgment will be rendered against the defendant according to the demand of the complaint. The summons shall be subscribed with the handwritten signature of the plaintiff or attorney with the addition of the post-office address at which papers in the action may be served on the plaintiff by mail, plaintiff's or attorney's telephone number, and, if by an attorney, the attorney's state bar number, if any. If the plaintiff is represented by a law firm, the summons shall contain the name and address of the firm and shall be subscribed with the handwritten signature and state bar number, if any, of one attorney who is a member or associate of such firm. When the complaint is not served with the summons and the only relief sought is the recovery of money, whether upon tort or contract, there may, at the option of the plaintiff, be added at the foot a brief note specifying the sum to be demanded by the complaint.
801.09(4)
(4) There may be as many authenticated copies of the summons and the complaint issued to the plaintiff or counsel as are needed for the purpose of effecting service on the defendant. Authentication shall be accomplished by the clerk's placing a filing stamp indicating the case number on each copy of the summons and the complaint.
801.09 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); Sup. Ct. Order, 67 Wis. 2d viii;
1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi; Sup. Ct. Order, 171 Wis. 2d xxv;
1993 a. 365,
486;
1997 a. 133,
187;
2001 a. 16;
2005 a. 442.
801.09 Cross-reference
Cross-reference: See s.
802.06 (1) for provision giving the state 45 days to serve an answer.
801.09 Note
Judicial Council Note, 1983: Sub. (2) (a) is amended by applying the extended response time for state officers and agencies to state agents and employees as well. The extended time is intended to allow investigation of the claim by the department of justice to determine whether representation of the defendant by the department is warranted under s. 893.82 or 895.46, Stats. [Re Order effective July 1, 1983]
801.09 Annotation
When a defective summons does not prejudice the defendant, non-compliance with sub. (2) (a) is not jurisdictional error. Canadian Pacific Ltd. v. Omark-Prentice Hydraulics,
86 Wis. 2d 369,
272 N.W.2d 407 (Ct. App. 1978).
801.09 Annotation
Failure to name a party in the summons means that the court has no authority over that party regarding the case. Prejudice need not be shown. Bulik v. Arrow Realty, Inc.,
148 Wis. 2d 441,
434 N.W.2d 853 (Ct. App. 1988).
801.09 Annotation
An unsigned summons served with a signed complaint is a technical defect, which in the absence of prejudice does not deny the trial court personal jurisdiction. Gaddis v. LaCrosse Products, Inc.
198 Wis. 2d 396,
542 N.W.2d 454 (1996),
94-2121.
801.09 Annotation
A stamped reproduction of a signature does not satisfy sub. (3), and correcting the signature a year after receiving notice of the defect is not timely under s. 802.05 (1) (a), 1999 stats. The error must be promptly corrected or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips,
2001 WI App 156,
246 Wis. 2d 673,
631 N.W.2d 635,
00-2416. See also Schaefer v. Riegelman,
2002 WI 18,
250 Wis. 2d 494, 639 N.W.2d N.W.2d 715,
00-2157, reversing the holding of
Novak that the error was technical and not fundamental.
801.09 Annotation
A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman,
2002 WI 18,
250 Wis. 2d 494, 639 N.W.2d N.W.2d 715,
00-2157.
801.09 Annotation
Default judgment entered immediately after the trial court permitted amendment of the pleadings to correct the defendant's name was void because the original summons and complaint named the wrong corporate entity, the defendant's parent. The general rule is that if a misnomer or misdescription does not leave in doubt the identity of the party intended to be sued, or, even when there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit, and a judgment taken by default is enforceable. However, if the amendment is to bring in a new party, it will be refused. Johnson v. Cintas Corporation,
2011 WI App 5,
331 Wis. 2d 51,
794 N.W.2d 475,
09-2549.
801.09 Annotation
A wholly owned subsidiary of a corporation is a legal entity that exists independently of the parent. The failure to name the subsidiary in a summons and complaint when the subsidiary was the correct party constituted a fundamental defect that precluded the circuit court of personal jurisdiction over the subsidiary, regardless of whether or not the defect prejudiced the subsidiary. It is irrelevant that the summons and complaint was served upon the registered agent for the subsidiary and the subsidiary might have had knowledge that it was meant to be a party. Johnson v. Cintas Corporation,
2011 WI App 5,
331 Wis. 2d 51,
794 N.W.2d 475,
09-2549.
801.095
801.095
Summons form. The summons shall be substantially in one of the forms specified in
subs. (1) to
(4). The applicable form depends on the type of service and on whether a complaint is served with the summons, in accordance with
s. 801.09. The forms are:
801.095(1)
(1) Personal service; complaint attached.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, To each person named above as a Defendant:
You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you. The complaint, which is attached, states the nature and basis of the legal action.
Within (20) (45) days of receiving this summons, you must respond with a written answer, as that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may reject or disregard an answer that does not follow the requirements of the statutes. The answer must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff's attorney, whose address is ..... You may have an attorney help or represent you.
If you do not provide a proper answer within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.
Dated: ...., .... (year)
Signed: .... ....
A. B., Plaintiff
or
E. F., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No: ....
801.095(2)
(2) Personal service; no complaint attached.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, To each person named above as a Defendant:
You are hereby notified that the Plaintiff named above has filed a lawsuit or other legal action against you.
Within (20) (45) days of receiving this summons, you must respond with a written demand for a copy of the complaint. The demand must be sent or delivered to the court, whose address is ...., and to ...., Plaintiff's attorney, whose address is ..... You may have an attorney help or represent you.
If you do not demand a copy of the complaint within (20) (45) days, the court may grant judgment against you for the award of money or other legal action requested in the complaint, and you may lose your right to object to anything that is or may be incorrect in the complaint. A judgment may be enforced as provided by law. A judgment awarding money may become a lien against any real estate you own now or in the future, and may also be enforced by garnishment or seizure of property.
Dated: ...., .... (year)
Signed: .... ....
A. B., Plaintiff
or
E. F., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
801.095(3)
(3) No personal service; complaint served at the same time.
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
