799.01 Annotation
A plaintiff may elect to sue in small claims court when actual damages exceed $5,000. The small claims award limitation is a limit on recovery, not a bar that denies the court jurisdiction over cases in which the plaintiff's actual damages exceed $5,000. When a trial court finds that a small claims plaintiff's actual damages exceed the statutory award limit of $5,000, the court should apply any reduction for comparative negligence to the damages found before applying the statutory limit. Bryhan v. Pink,
2006 WI App 110,
294 Wis. 2d 347,
718 N.W.2d 112,
05-1030.
799.01 Annotation
Civil theft under s. 895.446 is an “other civil action" under sub. (1) (d), not an “action based in tort" under sub. (1) (cr), and $10,000 in damages claimed and subsequently awarded was appropriate under sub. (1) (d). The use of the term “civil action" in s. 895.446 to describe the cause for civil theft provided under that section indicates that the cause may also be properly characterized as a “civil action" under this section. This statutory civil theft claim has been specifically distinguished from similar claims of conversion, which sound in tort. Miller v. Storey,
2017 WI 99,
378 Wis. 2d 358,
903 N.W.2d 759,
14-2420.
799.02
799.02
Counterclaims and cross complaints. 799.02(1)(1)
If a counterclaim or cross complaint is filed, which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim and which is beyond the limitations of s.
799.01, the person filing the same shall pay the fee prescribed in s.
814.62 (3) (b), and the entire matter shall be tried under chs.
801 to
847 procedure, except that the counterclaim or cross complaint shall be deemed denied and a responsive pleading thereto is not required unless ordered by the court and the requirements for appearance by the parties shall be governed by s.
799.06 (2).
799.02(2)
(2) If a counterclaim or cross complaint is filed, which does not arise out of the same transaction or occurrence that is the subject matter of the plaintiff's claim and which is beyond the limitations of s.
799.01, the court shall dismiss the same and proceed under this chapter.
799.02(3)
(3) If a counterclaim or cross complaint is filed that is beyond the limitations of s.
799.01, the person filing the counterclaim or cross complaint shall mail a notice to the plaintiff or the plaintiff's attorney, if any, at the address listed on the summons. The notice shall be mailed on the same day the counterclaim or cross complaint is filed and shall inform the plaintiff of all of the following:
799.02(3)(a)
(a) That a counterclaim or cross complaint has been filed in the action.
799.02(3)(b)
(b) That as a result of that filing the entire matter may be tried under chs.
801 to
847 procedure.
799.02(3)(c)
(c) That the summons, specifying the time and date the parties are required to appear at court, may no longer apply.
799.02(3)(d)
(d) The telephone number of the appropriate clerk of circuit court that the plaintiff may call to find out if he or she should still appear in court at the time and date listed on the summons.
799.02(3)(e)
(e) That a copy of the counterclaim or cross complaint will be served on the plaintiff or the plaintiff's attorney within 60 days after filing.
799.02 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975);
1979 c. 32 ss.
66,
92 (16);
1979 c. 89,
177; Stats. 1979 s. 799.02;
1981 c. 317;
1987 a. 208.
799.03
799.03
Definition. In this chapter unless otherwise designated, “court" means circuit court and “court" does not mean circuit court commissioner.
799.03 History
History: 1977 c. 345;
1977 c. 449 s.
497;
1979 c. 32 ss.
64,
92 (16); Stats. 1979 s. 799.03;
1983 a. 228;
2001 a. 61.
799.03 Note
Judicial Council Note, 1983: The first sentence is deleted because it has been construed to mean that actions for $1,000 or less need not be jurisdictionally brought under ch. 799. State v. Hervey,
113 Wis. 2d 634 (1983). Under revised s. 799.01, the circuit court lacks jurisdiction over certain actions unless ch. 799 procedures are followed. [Bill 324-S]
799.04
799.04
Relation of this chapter to other procedural rules. 799.04(1)(1)
General. Except as otherwise provided in this chapter, the general rules of practice and procedure in chs.
750 to
758 and
801 to
847 shall apply to actions and proceedings under this chapter. Any judicial proceeding authorized to be conducted under s.
807.13 may be so conducted in actions under this chapter.
799.04(2)
(2)
Forms. Except as otherwise provided in this subsection and this chapter, the forms specified in chs.
801 to
847 shall be used. Forms shall be uniform, concisely written and readily understandable by members of the public. Summons and complaint forms shall be made available to the public by the clerk of court and, in counties having a population of 750,000 or more, the summons shall have all provisions printed in both English and Spanish.
799.04 History
History: Sup. Ct. Order, 67 Wis. 2d 776;
1977 c. 345;
1979 c. 32 ss.
66,
92 (16);
1979 c. 89; Stats. 1979 s. 799.04; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
2017 a. 207 s.
5.
799.04 Note
Judicial Council Note, 1988: Sub. (1) is amended to authorized the use of telephone conferences in proceedings under this chapter whenever such conferences would be so authorized in other civil actions. [Re Order effective Jan. 1, 1988]
799.05(1)(1)
Contents. The summons shall state the nature of the demand substantially in the terms of one or more of the provisions of s.
799.01, and, except as provided in ss.
806.30 to
806.44, the dollar amount of damages, if any, the last-known address of the parties and the name, state bar number, if any, address and telephone number of plaintiff's attorney, if any. The caption shall include the standardized description of the case classification type and associated code number as approved by the director of state courts.
799.05(2)
(2)
Signing. The process shall be signed by the clerk or by any attorney duly authorized to practice law in this state and shall be issued by the clerk only to a person authorized to appear under s.
799.06 (2), and not otherwise.
799.05(3)(a)(a) Every summons shall specify a return date and time.
799.05(3)(b)
(b) Except in eviction actions, the return date for a summons served upon a resident of this state shall be not less than 8 days nor more than 30 days from the issue date, and service shall be made not less than 8 days prior to the return date. In eviction actions, the return date for a summons served upon a resident of this state shall be not less than 5 days nor more than 25 days from the issue date, and service shall be made not less than 5 days prior to the return date.
799.05(3)(c)
(c) The return date for a summons served upon a nonresident of this state shall be not less than 20 days from the issue date.
799.05(3)(d)
(d) The clerk shall set the day and hour at which the summons is returnable.
799.05(4)
(4)
Clerk to furnish time of return. If a summons is signed by an attorney, the attorney shall obtain from the clerk of court the hour and date within the limits of sub.
(3) on which to make the summons returnable.
799.05(5)
(5)
Noting date of mailing. After a copy of the summons has been mailed, the clerk shall note the date of mailing on the original.
STATE OF WISCONSIN CIRCUIT COURT: ....County
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S - SMALL CLAIMS
C. D.
Address .... (Case Classification Type): .... (Code No.)
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, to the Defendant:
You are hereby summoned to appear and plead to the Plaintiff's complaint in the above court at .... in the (city) (village) of ...., on the .... day of ...., .... (year), at .... o'clock (a.m.) (p.m.). [A copy of the complaint is hereto attached.] [The Plaintiff will state his or her demand on that date.] In case of your failure to appear, a judgment may be rendered against you in accordance with the demands made by the Plaintiff. The nature of the demand being made upon you is .... (state in terms of s.
799.01 of the Wisconsin Statutes) and the amount of damages, if any, demanded is .....
Dated: ...., ....(year)
Signed: .... ....
E. F., Clerk of Circuit Court
or
G. H., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
799.05(7)
(7)
Form; circuit court commissioner. Except as provided in s.
799.22 (4) (b) 3., in counties in which a circuit court commissioner is assigned to assist in small claims matters, the summons shall be substantially in the following form:
STATE OF WISCONSIN CIRCUIT COURT: .... COUNTY
A. B.
Address
City, State Zip Code File No. ....
, Plaintiff
vs. S U M M O N S (SMALL CLAIMS)
C.D.
Address
City, State Zip Code
, Defendant
THE STATE OF WISCONSIN, to the Defendant:
You are being sued for:
.... Eviction
.... Return of Property
.... Confirmation, vacation, modification or correction of arbitration award
.... $........
If you wish to dispute this matter, you must then be in Room ...., of the .... (County) County Courthouse, .... (address), .... (city), Wisconsin before .... o'clock (a.m.) (p.m.), on ...., .... (year). If you do not appear, a judgment may be given to the person suing you for what that person is asking.
You are encouraged to bring with you all papers and documents relating to this matter, but there is no need to bring witnesses at this time.
Dated at .... County, Wisconsin, this .... day of ...., .... (year)
Signed: .... ....
E. F., Clerk of Circuit Court
or
G. H., Plaintiff's Attorney
State Bar No.: ....
Address: ....
City, State Zip Code: ....
Phone No.: ....
799.05 History
History: 1977 c. 345;
1977 c. 449 s.
497;
1979 c. 32 ss.
66,
92 (16);
1979 c. 108;
1979 c. 176 s.
85;
1979 c. 177 s.
85; Stats. 1979 s. 799.05; Sup. Ct. Order, 130 Wis. 2d xi (1986);
1987 a. 142,
208,
403;
1989 a. 56;
1991 a. 163,
236; Sup. Ct. Order, 171 Wis. 2d xix (1992);
1993 a. 80;
1997 a. 250;
2001 a. 61;
2013 a. 76.
Effective date note
Judicial Council Note, 1986: Sub. (3) is amended by extending from 17 to 30 days the period between the issuance of the summons and the return date, in order to permit timely service on defendants who are not residents of the county where the action is pending. [Re Order eff. 7-1-86]
799.06
799.06
Actions; how commenced, pleadings, appearances. 799.06(1)(1)
Pleadings. All pleadings except the initial complaint may be oral. Any circuit court may by rule require written pleadings and any judge or circuit court commissioner may require written pleadings in a particular case.
799.06(2)
(2) A person may commence and prosecute or defend an action or proceeding under this chapter and may appear in his, her, or its own proper person or by an attorney regularly authorized to practice in the courts of this state. Under this subsection, a person is considered to be acting in his, her, or its own proper person if the appearance is by a member, as defined in s.
183.0102 (11), agent, or authorized employee of the person, or by an agent of the member or an authorized employee of the agent. An assignee of any cause of action under this chapter shall not appear by a full-time authorized employee, unless the employee is an attorney regularly authorized to practice in the courts of this state.
