(2) Tender after action commenced.
A tender may be made after an action is brought on the contract of the whole sum then due, plus legal costs of suit incurred up to the time, at any time before the action is called for trial. The tender may be made to the plaintiff or attorney, and if not accepted the defendant may plead the same by answer or supplemental answer, in like manner as if it had been made before the commencement of the action, bringing into court the money so tendered for costs as well as for debt or damages.
(3) Proceedings on acceptance of tender.
If the tender is accepted the plaintiff or attorney shall, at the request of the defendant, sign a stipulation of discontinuance of the action for that reason and shall deliver it to the defendant; and also a certificate or notice thereof to the officer who has any process against the defendant, if requested. If costs are incurred for any service made by the officer after the tender is accepted and before the officer receives notice of the acceptance, the defendant shall pay the costs to the officer or the tender is invalid.
(4) Involuntary trespass.
A tender may be made in all cases of involuntary trespass before action is commenced. When in the opinion of the court or jury a sufficient amount was tendered to the party injured, agent or attorney for the trespass complained of, judgment shall be entered against the plaintiff for costs if the defendant kept the tender good by paying the money into court at the trial for the use of the plaintiff.
(5) Payment into court of tender; record of deposits. 895.14(5)(a)(a)
When tender of payment in full is made and pleaded, the defendant shall pay the tender in full into court before the trial of the action is commenced and notify the opposite party in writing, or be deprived of all benefit of the tender. When the sum tendered and paid into court is sufficient, the defendant shall recover the taxable costs of the action, if the tender was prior to the commencement of the action. The defendant shall recover taxable costs from the time of the tender, if the tender was after suit commenced.
When any party, pursuant to an order or to law, deposits any money or property with the clerk of court, the clerk shall record the deposit in the minute record describing the money or property and stating the date of the deposit, by whom made, under what order or for what purpose and shall deliver a certificate of these facts to the depositor, with the volume and page of the record endorsed on the certificate.
History: 1981 c. 67
; 1983 a. 192
; 1983 a. 302
; Stats. 1983 s. 895.14.
Remedies not merged.
When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.
Limitation of surety's liability.
Any person may limit the amount of liability as a surety upon any bond or other obligation required by law or ordered by any court, judge, municipal judge or public official for any purpose. The amount of the limited liability may be recited in the body of the bond or stated in the justification of the surety. In an action brought upon the bond, no judgment may be recovered against the surety for a sum larger than the amount of the liability stated, together with the proportional share of the costs of the action. In an action brought on the bond, a surety may deposit in court the amount of the liability, whereupon the surety shall be discharged and released from any further liability under the bond.
History: 1979 c. 110
s. 60 (11)
; 1985 a. 332
Renewal of sureties upon becoming insufficient and effects thereof.
If any bail bond, recognizance, undertaking or other bond or undertaking given in any civil or criminal action or proceeding, becomes at any time insufficient, the court or judge thereof, municipal judge or any magistrate before whom such action or proceeding is pending, may, upon notice, require the plaintiff or defendant to give a new bond, recognizance or undertaking. Every person becoming surety on any such new bond, recognizance or undertaking is liable from the time the original was given, the same as if he or she had been the original surety. If any person fails to comply with the order made in the case the adverse party is entitled to any order, judgment, remedy or process to which he or she would have been entitled had no bond, recognizance or undertaking been given at any time.
History: 1977 c. 305
A precondition for this section to apply is that the bond must at one time have been sufficient. Bruer v. Town of Addison, 194 Wis. 2d 617
, 534 N.W.2d 634
(Ct. App. 1995).
Justification of individual sureties. 895.345(1)(1)
This section shall apply to any bond or undertaking in an amount of more than $1,000 whereon individuals are offered as sureties, which is authorized or required by any provision of the statutes to be given or furnished in or in connection with any civil action or proceeding in any court of record in this state, in connection with which bond or undertaking real property is offered as security.
Before any such bond or undertaking shall be approved, there shall be attached thereto and made a part of such bond or undertaking a statement under oath in duplicate by the surety that the surety is the sole owner of the property offered by the surety as security and containing the following additional information:
An accurate description by lot and block number, if part of a recorded and filed plat, or by metes and bounds of the real estate offered as security.
A statement that none of the properties offered constitute the homestead of the surety.
A statement of the total amount of the liens, unpaid taxes and other encumbrances against each property offered.
A statement as to the assessed value of each property offered, its market value and the value of the equity over and above all encumbrances, liens and unpaid taxes.
That the equity of the real property is equal to twice the penalty of the bond or undertaking.
This sworn statement shall be in addition to and notwithstanding other affidavits or statements of justification required or provided for elsewhere in the statutes in connection with such bonds and undertakings.
History: 1993 a. 486
; 1999 a. 96
This section does not apply to bonds of personal representatives. See s. 856.25
Bail, deposit in lieu of bond.
When any bond or undertaking is authorized in any civil or criminal action or proceeding, the would-be obligor may, in lieu thereof and with like legal effect, deposit with the proper court or officer cash or certified bank checks or U.S. bonds or bank certificates of deposit in an amount at least equal to the required security; and the receiver thereof shall give a receipt therefor and shall notify the payor bank of any deposits of bank certificates of deposit. Section 808.07
shall govern the procedure so far as applicable.
Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187
Expenses in actions against municipal and other officers. 895.35(1)(1)
Whenever in any city, town, village, school district, technical college district or county charges of any kind are filed or an action is brought against any officer thereof in the officer's official capacity, or to subject any such officer, whether or not the officer is being compensated on a salary basis, to a personal liability growing out of the performance of official duties, and such charges or such action is discontinued or dismissed or such matter is determined favorably to such officer, or such officer is reinstated, or in case such officer, without fault on the officer's part, is subjected to a personal liability as aforesaid, such city, town, village, school district, technical college district or county may pay all reasonable expenses which such officer necessarily expended by reason thereof. Such expenses may likewise be paid, even though decided adversely to such officer, where it appears from the certificate of the trial judge that the action involved the constitutionality of a statute, not theretofore construed, relating to the performance of the official duties of said officer.
“Protective services officer" means an emergency medical services practitioner, as defined in s. 256.01 (5)
, an emergency medical responder, as defined in s. 256.01 (4p)
, a fire fighter, or a law enforcement or correctional officer.
Notwithstanding sub. (1)
, the city, town, village, school district, technical college district, or county shall reimburse a protective services officer for reasonable attorney fees incurred by the officer in connection with a criminal proceeding arising from the officer's conduct in the performance of official duties unless, in relation to that conduct, any of the following applies:
The officer resigns for reasons other than retirement before the attorney fees are incurred.
The officer is suspended without pay for 10 or more working days.
If a collective bargaining agreement covering the protective services officer defines reasonable attorney fees for the purpose of subd. 1.
, that definition shall apply.
A county has the option to refuse payment of its sheriff's criminal defense attorney's fees. Bablitch & Bablitch v. Lincoln County, 82 Wis. 2d 574
, 263 N.W.2d 218
This section allows a municipality or county to pay an officer's attorney fees if it so elects. If the municipality refuses payment, the officer has no cause of action against the municipality under this section, even if the municipality had a practice of reimbursing attorney fees and costs incurred and it failed to pay because of political concerns. Murray v. City of Milwaukee, 2002 WI App 62
, 252 Wis. 2d 613
, 642 N.W.2d 541
A city may reimburse a commissioner of the city redevelopment authority for legal expenses incurred by the commissioner when charges are filed against the commissioner in his or her official capacity seeking the commissioner's removal from office for cause and the charges are found by the common council to be unsupported. Such reimbursement is discretionary. The city redevelopment authority lacks statutory authority to authorize reimbursement for such legal expenses. 63 Atty. Gen. 421.
A city council can, in limited circumstances, reimburse a council member for reasonable attorney fees incurred in defending an alleged violation of the open meeting law, but cannot reimburse the member for any forfeiture imposed. 66 Atty. Gen. 226.
This section applies to criminal charges brought against a former officer for alleged fraudulent filing of expense vouchers. 71 Atty. Gen. 4
Sections 895.35 and 895.46 apply to actions for open meetings law violations to the same extent they apply to other actions against public officers and employees, except that public officials cannot be reimbursed for forfeitures they are ordered to pay for violating open meetings law. 77 Atty. Gen. 177
Process against corporation or limited liability company officer.
No process against private property shall issue in an action or upon a judgment against a public corporation or limited liability company or an officer or manager in his or her official capacity, when the liability, if any, is that of the corporation or limited liability company nor shall any person be liable as garnishee of such public corporation or limited liability company.
History: 1993 a. 112
; 2005 a. 155
Abrogation of defenses in employee personal injury actions. 895.37(1)(1)
In any action to recover damages for a personal injury sustained within this state by an employee while engaged in the line of the employee's duty as an employee, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary care of the employer, or of any officer, agent, or servant of the employer, it shall not be a defense:
That the employee either expressly or impliedly assumed the risk of the hazard complained of.
When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant.
When such employer has at the time of the injury in a common employment 3 or more employees, that the injury or death was caused in whole or in part by the want of ordinary care of the injured employee, where such want of ordinary care was not willful.
Any employer who has elected to pay compensation as provided in ch. 102
shall not be subject to this section.
Subsection (1) (a)
shall not apply to farm labor, except such farm labor as is subject to ch. 102
No contract, rule, or regulation, shall exempt the employer from this section.
History: 1993 a. 486
; 2005 a. 155
The fellow servant defense is not available to a farm employer of a child employed in violation of child labor laws. Tisdale v. Hasslinger, 79 Wis. 2d 194
, 255 N.W.2d 314
Abrogation of defense that contract was champertous.
No action, special proceeding, cross complaint or counterclaim in any court shall be dismissed on the ground that a party to the action is a party to a contract savoring of champerty or maintenance unless the contract is the basis of the claim pleaded.
Deposit of undistributed money and property by personal representatives and others. 895.42(1)(a)
In this subsection, “trust company" means any trust company or any state or national bank in this state that is authorized to exercise trust powers.
If in any proceeding in any court of record it is determined that moneys or other personal property in the custody of or under the control of any personal representative, trustee, receiver, or other officer of the court, belongs to a natural person if the person is alive, or to an artificial person if it is in existence and entitled to receive, and otherwise to some other person, and the court finds any of the following, the court may direct the officer having custody or control of the money or property to deposit the money or property with any trust company:
That there is not sufficient evidence showing that the natural person first entitled to take is alive, or that the artificial person is in existence and entitled to receive.
That the money or other personal property, including any legacy or share of intestate property, cannot be delivered to the person entitled to the money or property because the person is a member of the military or naval forces of the United States or any of its allies or is engaged in any of the armed forces abroad or with the American Red Cross society or other body or similar business.
Any officer depositing money or property with a trust company under par. (b)
, shall take the trust company's receipt for the deposit. The receipt shall, to the extent of the deposit, constitute a complete discharge of the officer in any accounting made by the officer in the proceeding.
In case such deposit is directed to be made, the court shall require the trust company or bank in which said deposit is ordered to be made, as a condition of the receipt thereof, to accept and handle, manage and invest the same as trust funds to the same extent as if it had received the same as a testamentary trust, unless the court shall expressly otherwise direct, except that the reports shall be made to the court of its appointment.
No distribution of the moneys or personal property so deposited shall be made by the depository as such trustee or otherwise without an order of the court on notice as prescribed by s. 879.03
, and the jurisdiction of the court in the proceeding will be continued to determine, at any time at the instance of any party interested, the ownership of said funds, and to order their distribution.
Intentional killing by beneficiary of contract.
The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are governed by s. 854.14
Intentional killing by beneficiary of certain death benefits.
The rights of a beneficiary to receive benefits payable by reason of the death of an individual killed by the beneficiary are governed by s. 854.14
Sexual exploitation by a therapist; action for. 895.441(1)(e)
“Therapist" means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.
Any person who suffers, directly or indirectly, a physical, mental or emotional injury caused by, resulting from or arising out of sexual contact with a therapist who is rendering or has rendered to that person psychotherapy, counseling or other assessment or treatment of or involving any mental or emotional illness, symptom or condition has a civil cause of action against the psychotherapist for all damages resulting from, arising out of or caused by that sexual contact. Consent is not an issue in an action under this section, unless the sexual contact that is the subject of the action occurred more than 6 months after the psychotherapy, counseling, assessment or treatment ended.
Notwithstanding ss. 801.09 (1)
, 802.04 (1)
and 815.05 (1g) (a)
, in an action brought under this section, the plaintiff may substitute his or her initials, or fictitious initials, and his or her age and county of residence for his or her name and address on the summons and complaint. The plaintiff's attorney shall supply the court the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.
Upon motion by the plaintiff, and for good cause shown, or upon its own motion, the court may make any order that justice requires to protect:
A plaintiff who is using initials in an action under this section from annoyance, embarrassment, oppression or undue burden that would arise if any information identifying the plaintiff were made public.