Only the damages demanded may be awarded in a default judgment. Because the complaint did not contain a specific damage claim in accordance with s. 802.02 (1m), the plaintiff's failure to serve an affidavit setting forth the amount of its claimed damages was grounds for reversing a default judgment. Stein v. Illinois State Assistance Commission, 194 Wis. 2d 775
, 535 N.W.2d 101
(Ct. App. 1995).
A default judgment entered as a sanction is not governed by s. 806.02 and does not require a full evidentiary hearing if damages are contested. The proper form of hearing on damages is left to trial court discretion. Chevron Chemical Co. v. Deloitte & Touche LLP, 207 Wis. 2d 43
, 557 N.W.2d 775
A circuit court entering default judgment on a punitive damages claim must make inquiry beyond the complaint to determine the merits of the claim and the amount to be awarded. Apex Electronics Corp. v. Gee, 217 Wis. 2d 378
, 577 N.W.2d 23
If proof of damages is necessary, the trial court may hold a hearing, and the defendant has the right to participate and present evidence. Smith v. Golde, 224 Wis. 2d 518
, 592 N.W.2d 287
(Ct. App. 1999), 97-3404
An amended complaint that makes no reference to or incorporates any of the original complaint supersedes the original complaint when the amended complaint is filed in court. When such a complaint was filed prior to the time for answering on the original complaint had run, it was improper to enter a default judgment on the original complaint. Holman v. Family Health Plan, 227 Wis. 2d 478
, 596 N.W.2d 358
A party in default for failing to answer an original complaint cannot answer an amended complaint, thereby attempting to cure its default, unless the amended complaint relates to a new or additional claim for relief. Ness v. Digital Dial Communications, Inc. 227 Wis. 2d 592
, 596 N.W.2d 365
The decision to grant default judgment is within the sound discretion of the circuit court. The 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 s. 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
That a party may be in default cannot confer a right to judgment upon a claim not recognized by law. The failure of an averment to state a valid claim for relief is fatal to a motion for default judgment. It follows that the failure to aver a claim for relief at all is fatal to a motion for default judgment. Tridle v. Horn, 2002 WI App 215
, 257 Wis. 2d. 529, 652 N.W.2d 418
Because an amended complaint that makes no reference to the original complaint and incorporates no part of the original complaint by reference supplants the original, any previous joining of issue resulting from answering the original complaint is nullified. To join issue, an answer to the amended complaint is required and absent an answer the action is subject to default judgment under sub. (1). Schuett v. Hanson, 2007 WI App 226
, 305 Wis. 2d 729
, 741 N.W.2d 292
If a motion to enlarge time to serve is properly denied, a responsive pleading is not joined and effectively is stricken from the record. A motion for default judgment under sub. (2) is properly granted when the court effectively erases any responsive pleading either by granting a motion to strike or by denying a motion to enlarge time. Keene v. Sippel, 2007 WI App 261
, 306 Wis. 2d 643
, 743 N.W.2d 838
The timely answer of the codefendant insureds denying the liability of all defendants did not preclude a judgment by default against the insurer on the issue of liability and damages upon the insurer's acknowledged default. Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc. 2008 WI 78
, 311 Wis. 2d 84
, 751 N.W.2d 805
It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under Art. I, s. 5 when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc. 2008 WI 73
, 310 Wis. 2d 623
, 752 N.W.2d 220
As a result of its failure to timely answer, for purposes of a default judgment motion, the defendant surety admitted the allegations necessary for it to be held liable, including the allegations of its principal's liability. Although the defendant argued its liability was solely derivative of the principal's liability, as a matter of law, the defendant's surety status did not save it from default judgment. Backus Electric, Inc. v. Petro Chemical Systems, Inc. 2013 WI App 35
, 346 Wis. 2d 668
, 829 N.W.2d 516
Too Late? Interests of Justice Trump Default Judgments. Nelson. Wis. Law. Nov. 2012.
See also notes to s. 806.07
for decisions relating to the vacation of default judgments.
Payment of judgment in cases involving prisoners. 806.025(2)
If a court enters a judgment for a monetary award on behalf of a prisoner, the court shall do all of the following:
Order that the award be used to satisfy any unpaid court order of restitution against the prisoner and any other civil judgment in favor of a victim of a crime committed by the prisoner. If the amount of the monetary award is insufficient to pay all these unpaid orders and judgments, the orders and judgments shall be paid based on the length of time they have existed, the oldest order being paid first.
If money remains after the payment of all unpaid orders and judgments under par. (a)
, order reimbursement to the department of justice for an award made under subch. I of ch. 949
for which the department is subrogated under s. 949.15
If money remains after the payment of reimbursement under par. (am)
, order the payment of any child or family support owed by the prisoner.
If money remains after the payment of child or family support under par. (at)
, order the payment of court costs or filing fees previously assessed against the prisoner by a state court that remain unpaid, with the oldest costs or fees being paid first.
If money remains after the payment of all court costs or filing fees under par. (b)
, order the payment of any unpaid litigation loan, as defined in s. 301.328 (1)
If any money remains after the payments under pars. (a)
, request that the department of corrections make a reasonable effort to notify any victims of the crime for which the prisoner was convicted and imprisoned, incarcerated or confined of the pending payment of a monetary award to the prisoner. The department of corrections shall inform the court of whether any victims were notified. The court shall withhold any payment to the prisoner under par. (e)
for a reasonable time after the department of corrections notifies the court that a victim was notified so that the victim may have time to petition the court regarding payments to that victim from the remaining money.
Order that any money remaining after all payments are made under pars. (a)
be paid to the prisoner.
History: 1997 a. 133
; 2007 a. 20
Judgment on admitted claim; order to satisfy.
In an action on an express contract for the recovery of a liquidated sum of money only, if the answer admits any part of the plaintiff's claim or if the answer sets up a counterclaim for an amount less than the plaintiff's claim and contains no other defense to the action, the clerk, on motion of the plaintiff, shall render and enter judgment for the amount so admitted or for the amount claimed in the complaint less the amount of the defendant's counterclaim. When the defendant admits part of the plaintiff's claim to be just, the court, on motion, may order the defendant to satisfy that part of the claim and may enforce the order as it enforces a judgment or provisional remedy.
History: Sup. Ct. Order, 67 Wis. 2d 585, 718 (1975); Sup. Ct. Order, 73 Wis. 2d xxxi (1976).
Judicial Council Committee's Note, 1976: A clerk of court is permitted under s. 806.06 (2) to render the judgment described in ss. 806.02 (4) and 806.03. [Re Order effective Jan. 1, 1977]
Uniform declaratory judgments act. 806.04(1)(1)
Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree, except that finality for purposes of filing an appeal as of right shall be determined in accordance with s. 808.03 (1)
(2) Power to construe, etc.
Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that the party holds a license or permit under such statutes or ordinances.
(3) Before breach.
A contract may be construed either before or after there has been a breach thereof.
(4) Representatives, etc.
Any person interested as or through a personal representative, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, or of the estate of a decedent, infant, individual adjudicated incompetent, or insolvent, may have a declaration of rights or legal relations in respect to the administration of the trust or estate for any of the following purposes:
To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or
To direct the personal representatives or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.
(5) Enumeration not exclusive.
The enumeration in subs. (2)
does not limit or restrict the exercise of the general powers conferred in sub. (1)
in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
All orders, judgments and decrees under this section may be reviewed as other orders, judgments and decrees.
(8) Supplemental relief.
Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.
(9) Jury trial.
When a proceeding under this section involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
In any proceeding under this section the court may make such award of costs as may seem equitable and just.
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration may prejudice the right of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipality shall be made a party, and shall be entitled to be heard. If a statute, ordinance or franchise is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the attorney general shall also be served with a copy of the proceeding and be entitled to be heard. If a statute is alleged to be unconstitutional, or to be in violation of or preempted by federal law, or if the construction or validity of a statute is otherwise challenged, the speaker of the assembly, the president of the senate, and the senate majority leader shall also be served with a copy of the proceeding, and the assembly, the senate, and the state legislature are entitled to be heard. If the assembly, the senate, or the joint committee on legislative organization intervenes as provided under s. 803.09 (2m)
, the assembly shall represent the assembly, the senate shall represent the senate, and the joint committee on legislative organization shall represent the legislature. In any proceeding under this section in which the constitutionality, construction or application of any provision of ch. 227
, or of any statute allowing a legislative committee to suspend, or to delay or prevent the adoption of, a rule as defined in s. 227.01 (13)
is placed in issue by the parties, the joint committee for review of administrative rules shall be served with a copy of the petition and, with the approval of the joint committee on legislative organization, shall be made a party and be entitled to be heard.
This section is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.
(13) Words construed.
The word “person" wherever used in this section, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.
(14) Provisions severable.
The several subsections and provisions of this section except subs. (1)
are declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the statute invalid or inoperative.
(15) Uniformity of interpretation.
This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.
(16) Short title.
This section may be cited as the “Uniform Declaratory Judgments Act".
Sup. Ct. Order, 67 Wis. 2d 585, 718 (1975); 1975 c. 218
; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449
; 1979 c. 38
; 1979 c. 330
; 1979 c. 352
; 1981 c. 96
; 1981 c. 187
; 1981 c. 390
; 1983 a. 255
; 1985 a. 182
, Sup. Ct. Order, 166 Wis. 2d xix (1992); 2001 a. 102
; 2005 a. 177
; 2017 a. 369
Judicial Council Committee's Note, 1977: Sub. (3m), as created by ch. 263, laws of 1973, is added. Sub. (3m), which was created during the time the rules of civil procedure were in the process of being adopted, was inadvertently not included in new s. 806.04 along with the other provisions of former s. 269.56. The only intent of the Judicial Council during the preparation of the Rules of Civil Procedure in regard to old s. 269.56 was to renumber it to s. 806.04. [Re Order effective July 1, 1978]
Judicial Council Note, 1991: Sub. (1) is amended to clarify that a declaratory judgment is not appealable as of right unless it disposes of the entire matter in litigation as to one or more of the parties. [Re Order effective July 1, 1992]
A hospital's action for declaratory judgment to define a law enforcement officer's right to demand that doctors take blood samples for intoxication tests did not lie when the complaint did not cite a statute under which the doctors were threatened with prosecution or sufficient facts to determine the application of a particular statute. Waukesha Memorial Hospital v. Baird, 45 Wis. 2d 629
, 173 N.W.2d 700
In most cases a court may not know that a declaratory judgment would not terminate a controversy giving rise to the proceeding until it has heard the evidence, but a court need not go through trial to arrive at a foregone conclusion when it appears on the face of the complaint that a declaratory judgment will not terminate the controversy. (Language in Miller v. Currie
, 208 Wis. 199 intimating otherwise, is modified.) American Medical Services Inc. v. Mutual Federal Savings & Loan, 52 Wis. 2d 198
, 188 N.W.2d 529
Sub. (5) qualifies the specific powers enumerated in subs. (1) to (4) and the discretionary power in sub. (6) applies to all cases. Even if a complaint states a cause of action for declaratory relief, it may be dismissed if a declaratory judgment would not terminate the controversy. American Medical Services Inc. v. Mutual Federal Savings & Loan, 52 Wis. 2d 198
, 188 N.W.2d 529
In an action for declaratory judgment, the complaint should not be dismissed when the judgment declares the rights on the complaint or the merits are decided. Dismissal is proper when for a valid reason the merits are not reached and the suit should not be entertained. Kenosha v. Unified School District No. 1, 55 Wis. 2d 642
, 201 N.W.2d 66
A declaratory judgement action was an appropriate vehicle for a putative father seeking a determination of his paternity. Slawek v. Stroh, 62 Wis. 2d 295
, 215 N.W.2d 9
A request for declaratory judgment to declare the proper procedure to be followed in an administrative proceeding could not be entertained because the purpose of the statute was to expedite justice and to avoid long and complicated litigation, not to interrupt legal proceedings presently in operation. State v. WERC, 65 Wis. 2d 624
, 223 N.W.2d 543
The service of a copy of the proceedings upon the attorney general under sub. (11) is not only mandatory but goes to the jurisdiction of the court to hear the action in the first instance. Bollhoffer v. Wolke, 66 Wis. 2d 141
, 223 N.W.2d 902
A declaratory judgment to effect dissolution of a corporation did not lie because: 1) the determination of the corporation's right to exist would affect members not before the court as parties; 2) sub. (11) required that all persons who “would be affected by the declaration" shall be made parties; and 3) a corporation may only be dissolved by voluntary act of its shareholders or involuntary proceedings initiated by the attorney general. Rudolph v. Indian Hills Estates, Inc. 68 Wis. 2d 768
, 229 N.W.2d 671
Hospitals are “direct objects" of s. 70.11 (4m) for purposes of standing to bring a declaratory judgment action seeking a tax exemption for medical equipment leased by the hospital from a commercial lessor. Madison General Hospital Association v. City of Madison, 71 Wis. 2d 259
, 237 N.W.2d 750
The use of the declaratory judgment act to attempt to fix the state's responsibility to respond to a monetary claim is not authorized. Lister v. Board of Regents, 72 Wis. 2d 282
, 240 N.W.2d 610
In a declaratory judgment action by taxpayers against a school board, legal conclusions in the complaint challenging the constitutionality of a taxing statute were permissible. Declaratory judgment actions are discussed. Tooley v. O'Connell, 77 Wis. 2d 422
, 253 N.W.2d 335
Service on the attorney general is a jurisdictional prerequisite under sub. (11) even when the constitutional issue is collateral to or a preliminary step in the determination of the rights sought to be declared. O'Connell v. Board of Education, Jt. District #10 of Mukwonago, 82 Wis. 2d 728
, 264 N.W.2d 561
Service under sub. (11) on the attorney general is timely if made in time to permit a defense against a claim of unconstitutionality. Town of Walworth v. Fontana-on-Geneva Lake, 85 Wis. 2d 432
, 270 N.W.2d 442
(Ct. App. 1978).
If the constitutionality of a statute is challenged in an action other than a declaratory judgment action, the attorney general must be served, but the failure to do so at the trial court level was cured by service at the appellate level. In Matter of Estate of Fessler, 100 Wis. 2d 437
, 302 N.W.2d 414
The trial court did not abuse its discretion by declaring rights that would be created if a proposed release agreement were executed. Loy v. Bunderson, 107 Wis. 2d 400
, 320 N.W.2d 175
Attorney fees are not recoverable as “costs" under sub. (10). Kremers-Urban Co. v. American Employers Ins. 119 Wis. 2d 722
, 351 N.W.2d 156
Under sub. (11), the plaintiff must serve the joint committee for review of administrative rules within the time limits under s. 893.02. Richards v. Young, 150 Wis. 2d 549
, 441 N.W.2d 742
The declaratory judgments act is singularly suited to test the validity of legislative action prior to enforcement. Weber v. Town of Lincoln, 159 Wis. 2d 144
, 463 N.W.2d 869
(Ct. App. 1990).
Declaratory judgment is appropriate if: 1) there is a controversy in which a claim is asserted against a party with an interest in contesting it; 2) the controversy is between adverse parties; 3) the party seeking relief has a legally protectible interest; and 4) the issue in controversy is ripe for determination. Miller Brands-Milwaukee v. Case, 162 Wis. 2d 684
, 470 N.W.2d 290
Supplemental relief under sub. (8) may include attorney fees incurred by an insured in establishing coverage under a policy. Elliott v. Donahue, 169 Wis. 2d 310
, 485 N.W.2d 403
If the issue of insurance coverage involves a party not a party to the underlying lawsuit, coverage may be determined by either a bifurcated trial or a separate declaratory judgment action. The plaintiff and any other party asserting a claim in the underlying suit must be named and consolidation with the underlying action may be required. Fire Insurance Exchange v. Basten, 202 Wis. 2d 74
, 549 N.W.2d 690
By definition, ripeness required in a declaratory judgment is different from ripeness required in other actions. A plaintiff seeking a declaratory judgment need not actually suffer an injury before seeking relief under sub. (2). Nonetheless, a matter is not ripe unless the facts are sufficiently developed to allow a conclusive adjudication. Milwaukee District Council 48 v. Milwaukee County, 2001 WI 65
, 244 Wis. 2d 333
, 627 N.W.2d 866
To have standing to bring an action for declaratory judgment, a party must have a personal stake in the outcome and must be directly affected by the issues in controversy. A party's status as a taxpayer, property owner, or one who disagrees with municipal decisions does not confer standing. Lake Country Racquet & Athletic Club, Inc. v. Village of Hartland, 2002 WI App 301
, 259 Wis. 2d 107
, 655 N.W.2d 189
Sub. (2) does not address the application of the exhaustion of administrative remedies doctrine. The doctrine may apply even though a party seeks relief that falls within sub. (2). Although administrative agencies do not have the power to declare statutes unconstitutional and the lack of authority has been a basis for not applying the exhaustion doctrine, if the agency has the authority to provide the relief requested without invalidating the rule, a constitutional basis for the claim does not in itself support an exception to the exhaustion rule. Metz v. Veterinary Examining Board, 2007 WI App 220
, 305 Wis. 2d 788
, 741 N.W.2d 244
Sub. (11) does not require that when a declaratory judgment as to the validity of a statute or ordinance is sought, every person whose interests are affected by the statute or ordinance must be made a party to the action. If the statute were so construed, the remedy would be rendered impractical and indeed often worthless for determining the validity of legislative enactments, either state or local, since such enactments commonly affect the interests of large numbers of people. Helgeland v. Wisconsin Municipalities, 2008 WI 9
, 307 Wis. 2d 1
, 745 N.W.2d 1
Parties to written instruments may seek a declaration of the construction or validity of the instrument, and a contract may be construed either before or after a breach. Thus, the plaintiffs did not need to allege a breach of obligations regarding the construction of a driveway over an easement granted in a recorded instrument in order to seek a declaration of those obligations. Mnuk v. Harmony Homes, Inc. 2010 WI App 102
, 329 Wis. 2d_182, 790 N.W.2d 514
This section should be construed together with the statute on class actions, s. 803.08, and therefore it does not exclude the procedure of representative defense of the interests of a class from an action for declaratory relief. Ewer v. Lake Arrowhead Association, Inc. 2012 WI App 64
, 342 Wis. 2d 194
, 817 N.W.2d 465
A matter is justiciable if the party seeking declaratory relief has a legal interest in the controversy, that is to say a legally protectable interest, which is often expressed in terms of standing. The plaintiffs' request for declaratory judgment interpreting a newly enacted statute was not justiciable when the plaintiffs failed to show how they possibly could be in violation of the statute. Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 2016 WI App 19
, 367 Wis. 2d 712
, 877 N.W.2d 604
stands for the proposition that the successful invocation of taxpayer standing requires an allegation of either direct harm to the plaintiff's property or a risk of pecuniary loss or substantial injury. The alleged unlawful expenditure of public funds, if otherwise sufficient to survive a motion to dismiss, is sufficient to support taxpayer standing. Voters with Facts v. City of Eau Claire, 2017 WI App 35
, 376 Wis. 2d 479
, 899 N.W.2d 706
There is no authority for the proposition that a governmental entity provided notice of a constitutional challenge to one of its statutes in the context of private litigation must intervene or suffer the consequences. While the attorney general may have a general duty to defend Wisconsin statutes against constitutional attack, this does not mandate intervention and justify the application of preclusion principles. Intervention is a strategic decision left to the better judgment of the attorney general. Flying J, Inc. v. Van Hollen, 597 F. Supp. 2d 848
Declaratory judgments against obscene matter. 806.05(1)(1)
Grounds for and commencement of action.
Whenever there is reasonable cause to believe that any book, magazine, or other written matter, or picture, sound recording or film, which is being sold, loaned, or distributed in any county, or is in the possession of any person who intends to sell, loan or distribute the same in any county, is obscene, the district attorney of such county, in the name of the state, as plaintiff, may file a complaint in the circuit court for such county directed against such matter by name. Upon the filing of such complaint, the court shall make a summary examination of such matter. If it is of the opinion that there is reasonable cause to believe that such matter is obscene, it shall issue an order, directed against said matter by name, to show cause why said matter should not be judicially determined to be obscene. This order shall be addressed to all persons interested in the publication, production, sale, loan, exhibition and distribution thereof, and shall be returnable within 30 days. The order shall be published as a class 2 notice, under ch. 985
. A copy of such order shall be sent by certified mail to the publisher, producer, and one or more distributors of said matter, to the persons holding the copyrights, and to the author, in case the names of any such persons appear on such matter or can with reasonable diligence be ascertained by said district attorney. Such publication shall commence and such notices shall be so mailed within 72 hours of the issuance of the order to show cause by the court.
(1m) Interlocutory adjudication.
After the issuance of the order to show cause under sub. (1)
, the court shall, on motion of the district attorney, make an interlocutory finding and adjudication that said book, magazine or other written matter or picture, sound recording or film is obscene, which finding and adjudication shall be of the same effect as the final judgment provided in sub. (3)
, but only until such final judgment is made or until further order of the court.
(2) Right to defend; jury trial.
Any person interested in the publication, production, sale, loan, exhibition or distribution of such matter may appear and file an answer on or before the return day named in said notice. If in such answer the right to trial by jury is claimed on the issue of the obscenity of said matter, such issue shall be tried to a jury. If no right to such trial is thus claimed, it shall be deemed waived, unless the court shall, for cause shown, on motion of an answering party, otherwise order.
If no person appears and answers within the time allowed, the court may then, without notice, upon motion of the plaintiff, if the court finds that the matter is obscene, make an adjudication against the matter that the same is obscene.