Chapter 801

801.11 Annotation The exact identity and job title of the person upon whom service was made was not critical to whether the person was “apparently in charge of the office” under sub. (5) (a). Horrigan v. State Farm Insurance Co., 106 Wis. 2d 675, 317 N.W.2d 474 (1982).

801.11 Annotation Discussing “reasonable diligence” under sub. (1). Welty v. Heggy, 124 Wis. 2d 318, 369 N.W.2d 763 (Ct. App. 1985).

801.11 Annotation Indian tribal sovereignty is not infringed by service of process in a state action made on tribal lands. Landreman v. Martin, 191 Wis. 2d 787, 530 N.W.2d 62 (Ct. App. 1995).

801.11 Annotation Service of process on some of the partners in a general partnership is sufficient to properly commence a civil action against the partnership that will be binding on the partnership assets and the partners served. CH2M Hill, Inc. v. Black & Veatch, 206 Wis. 2d 370, 557 N.W.2d 829 (Ct. App. 1996), 95-2619.

801.11 Annotation The existence of a parent-subsidiary corporate relationship does not automatically establish the subsidiary as an agent of the parent for purposes of receiving process. Conservatorship of Prom v. Sumitomo Rubber Industries, Ltd., 224 Wis. 2d 743, 592 N.W.2d 657 (Ct. App. 1999), 98-0938.

801.11 Annotation A corporation whose offices were located on the 23rd floor of an office building was not properly served under sub. (5) (a) when the papers were left with a security guard in the building lobby who stated that he was authorized to accept service. Bar Code Resources v. Ameritech Information Systems, Inc., 229 Wis. 2d 287, 599 N.W.2d 872 (Ct. App. 1999), 98-1314.

801.11 Annotation Service on a limited partnership is governed by sub. (6), not ch. 179. Sub. (6) requires service upon all the general partners known to the plaintiff. When the only person served was a maintenance man, service was insufficient. Carmain v. Affiliated Capital Corp., 2002 WI App 271, 258 Wis. 2d 378, 654 N.W.2d 265, 01-3077.

801.11 Annotation Personal jurisdiction over a body politic may be obtained by service of the summons and complaint on an officer, director, or managing agent or by substitute service on a “person who is apparently in charge of the office.” Service on a nonparty, even when it occurs erroneously in reliance on the mistaken direction of a person in the office of the defendant, does not constitute service on the defendant. Hagen v. City of Milwaukee Employee’s Retirement System Annuity & Pension Board, 2003 WI 56, 262 Wis. 2d 113, 663 N.W.2d 268, 01-3198.

801.11 Annotation Neither s. 801.02 (1) nor this section allows a defendant who is being sued in a dual capacity, personally and officially, to be served in only one of those capacities. When an officer of a company received service on behalf of the company, receiving one copy of a summons and complaint, but was not served as an individual, although named individually, there was no jurisdiction over the defendant as an individual. Useni v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02-1475.

801.11 Annotation Sub. (1) (d) permits substituted service on a natural person’s agent who has actual express authority to accept service of summons for the principal. Apparent authority does not satisfy the requirement that the agent be “authorized by appointment” to accept service of summons. Mared Industries, Inc. v. Mansfield, 2005 WI 5, 277 Wis. 2d 350, 690 N.W.2d 835, 03-0097.

801.11 Annotation “Managing agent” as it appears in sub. (5) relates to an agent having general supervision of the affairs of the corporation. “Superintendent” and “managing agent” have corresponding meanings in the statute. Both terms relate to a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either everywhere or in a particular branch or district. Richards v. First Union Securities, Inc., 2006 WI 55, 290 Wis. 2d 620, 714 N.W.2d 913, 04-1877.

801.11 Annotation The guiding principle in reasonable diligence cases is that, when pursuing any leads or information reasonably calculated to make personal service possible, the plaintiff must not stop short of pursuing a viable lead or, in other words, stop short of the place where if the diligence were continued it might reasonably be expected to uncover an address of the person on whom service is sought. Loppnow v. Bielik, 2010 WI App 66, 324 Wis. 2d 803, 783 N.W.2d 450, 09-0747.

801.11 Annotation This chapter explicitly applies to a certiorari action initiated by the filing of a summons and complaint. Special circumstances cannot establish personal jurisdiction in a certiorari action when the defendant has not been served in accordance with this section. Bergstrom v. Polk County, 2011 WI App 20, 331 Wis. 2d 678, 795 N.W.2d 482, 09-2572.

801.11 Annotation Publication of the summons and complaint in this case failed to meet the requirements of sub. (1) (c), requiring vacation of a default judgment. While the plaintiff asserted that the newspaper used was the predominant newspaper to publish legal notices in the Milwaukee metropolitan area, it failed to provide any evidence to that effect. The undisputed record as it stood at the time of the default judgment failed to establish that publication in a newspaper “printed and published daily in the City of Milwaukee, in said county” would have been likely to provide notice to a resident of Menomonee Falls in Waukesha County. PHH Mortgage Corp. v. Mattfeld, 2011 WI App 62, 333 Wis. 2d 129, 799 N.W.2d 455, 10-0612.

801.11 Annotation Service by publication and mailing under sub. (1) (c) requires both publication and mailing to the defendant’s “known” address. An error in the address used during the mailing component of service by publication and mailing was a fundamental defect depriving the court of jurisdiction. Strict compliance with the procedures for alternative forms of service is no less important than strict compliance with the requirements for personal service. O’Donnell v. Kaye, 2015 WI App 7, 359 Wis. 2d 511, 859 N.W.2d 441, 13-2615.

801.11 Annotation Those attempting personal service under sub. (1) must employ reasonable diligence before resorting to an alternative method of service. Reasonable diligence is a question of what is reasonable under the facts of a particular case. One attempt at service before switching to substitute service may satisfy the reasonable diligence requirement. In this case, the process server exercised reasonable diligence when the process server went to the gated community where the defendant lived in Nevada, was denied entry by the security guard, and executed substitute service on the defendant by leaving the summons and complaint with the guard. It is relevant to the reasonableness analysis that Nevada law permits a single attempt at personal service and then substitute service by leaving the document with the guard of a gated community after the guard denies access. Culver v. Kaza, 2021 WI App 57, 399 Wis. 2d 131, 963 N.W.2d 865, 20-0309.

801.11 Annotation Admission of service by an assistant attorney general or a clerk specifically designated for that purpose by the attorney general will constitute service of process within the meaning of sub. (3). 63 Atty. Gen. 467.

801.11 Annotation To satisfy the “reasonable diligence” standard under sub. (1), Wisconsin requires a plaintiff who knows or readily can learn that a defendant has multiple addresses to attempt to serve the defendant at each address. Cunningham v. Montes, 883 F.3d 688 (2018).

801.11 Annotation Service on a nonresident defendant’s father at the father’s residence was insufficient for the exercise of personal jurisdiction over the nonresident, despite claimed actual notice, when no attempt was made to comply with s. 345.09. Chilcote v. Shertzer, 372 F. Supp. 86 (1974).

801.11 Annotation Where service is made by publication, Wisconsin law requires the plaintiff to arrange for publication of a publication summons, the contents of which must be substantially in the form detailed in s. 801.095 (4). The complaint itself is not published of course; Wisconsin does not absurdly require publication of the entire pleading, which could fill up multiple newspaper pages. Rather, service by publication is intended to provide notice of the existence of the complaint and lawsuit. Sub. (1) (c) thus requires the plaintiff to mail copies of the summons and complaint to the defendant at or immediately prior to the first publication. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.11 Annotation Under Wisconsin law, whether a plaintiff exercises “reasonable diligence” in attempting personal service for purposes of sub. (1) (c) is a highly factual issue. In this case, the plaintiff’s primary process server undertook multiple efforts to serve each of the defendants at multiple locations and on multiple days. This in itself was sufficient to show reasonable diligence. Further, additional efforts—hiring a second process server and searching the internet for other potential service locations—pushed the plaintiff’s efforts over the “reasonable diligence” line. Colborn v. Netflix Inc., 541 F. Supp. 3d 888 (2021).

801.12 801.12 Jurisdiction in rem or quasi in rem, manner of serving summons for; notice of object of action.

801.12(1) (1) A court of this state exercising jurisdiction in rem or quasi in rem pursuant to s. 801.07 may affect the interests of a defendant in such action only if a summons and either a copy of the complaint or a notice of the object of the action under sub. (2) have been served upon the defendant as follows:

801.12(1)(a) (a) If the defendant is known, defendant may be served in the manner prescribed for service of a summons in s. 801.11, but service in such a case shall not bind the defendant personally to the jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists.

801.12(1)(b) (b) If the defendant is unknown the summons may be served by publication thereof as a class 3 notice, under ch. 985.

801.12(2) (2) The notice of object of action shall be subscribed by the plaintiff or attorney and shall state the general object of the action, a brief description of all the property affected by it, if it affects specific real or personal property, the fact that no personal claim is made against such defendant, and that a copy of the complaint will be delivered personally or by mail to such defendant upon request made within the time fixed in s. 801.09 (2). If a defendant upon whom such notice is served unreasonably defends the action the defendant shall pay costs to the plaintiff.

801.12 History History: Sup. Ct. Order, 67 Wis. 2d 585, 606 (1975); 1975 c. 218.

801.12 Annotation Personal jurisdiction in fact, in addition to statutorily acceptable service, is a condition precedent to the exercise of jurisdiction in rem or quasi in rem upon a status or upon a property. Montalvo v. U.S. Title & Closing Services, LLC, 2013 WI App 8, 345 Wis. 2d 653, 827 N.W.2d 635, 12-0102.

801.13 801.13 Summons; when deemed served. A summons is deemed served as follows:

801.13(1) (1) A summons served personally upon the defendant or by substituted personal service upon another authorized to accept service of the summons for the defendant is deemed served on the day of service.

801.13(2) (2) A summons served by publication is deemed served on the first day of required publication.

801.13 History History: Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975).

801.14 801.14 Service and filing of pleadings and other papers.

801.14(1) (1) Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in s. 801.11.

801.14(2) (2) Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this section means: handing it to the attorney or to the party; transmitting a copy of the paper by facsimile machine to his or her office; or leaving it at his or her office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Except as otherwise provided in s. 801.18 (6) (a) and (b), if an attorney, or a party if appropriate, has consented in writing to accept service by electronic mail, delivery of a copy within this section may also include transmitting a copy of the paper by electronic mail to his or her primary or other designated electronic mail address. Service by mail is complete upon mailing. Service by facsimile is complete upon transmission. Service by electronic mail is complete upon transmission, except if the sender receives notification or indication that the message was not delivered. The first sentence of this subsection shall not apply to service of a summons or of any process of court or of any paper to bring a party into contempt of court.

801.14(2m) (2m) When an attorney has filed a limited appearance under s. 802.045 (2) on behalf of an otherwise self-represented person, anything required to be served under sub. (1) shall be served upon both the otherwise self-represented person who is receiving the limited scope representation and the attorney who filed the limited appearance under s. 802.045 (2). After the attorney files a notice of termination under s. 802.045 (4), no further service upon that attorney is required.

801.14(3) (3) In any action in which there are unusually large numbers of defendants, the court, upon motion or on its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

801.14(4) (4) All papers after the summons required to be served upon a party, except as provided in s. 804.01 (6), shall be filed with the court within a reasonable time after service. The filing of any paper required to be served constitutes a certification by the party or attorney effecting the filing that a copy of such paper has been timely served on all parties required to be served, except as the person effecting the filing may otherwise stipulate in writing.

801.14(6) (6) If an action pertaining to the subject matter of the compact authorized under s. 304.16 may affect the powers, responsibilities, or actions of the interstate commission, as defined in s. 304.16 (2) (f), the plaintiff shall deliver or mail a copy of the complaint to the interstate commission at its last-known address.

801.14 History History: Sup. Ct. Order, 67 Wis. 2d 585, 607 (1975); 1975 c. 218; Sup. Ct. Order, 130 Wis. 2d xix (1986); Sup. Ct. Order, 161 Wis. 2d xvii (1991); 2001 a. 96; 2007 a. 97; Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii; 2019 a. 30.

Effective date note Judicial Council Note, 1986: Sub. (4) is amended by insertion of a cross-reference to s. 804.01 (6), providing that discovery documents need not be filed with the court unless the court so orders. [Re Order eff. 7-1-86]

Effective date note Judicial Council Note, 1991: Sub. (2) is amended to clarify that facsimile transmission can be used to serve pleadings and other papers. Such service is deemed complete upon transmission. The change is not intended to expand the permissible means of serving a summons or writ conferring court jurisdiction under s. 799.12 and ch. 801, stats. [Re Order eff. 7-1-91]

801.14 Annotation Once an action has been commenced, service of the summons and complaint has been made on the defendant, and an attorney has appeared on behalf of the defendant, an amended complaint may be served on the defendant’s attorney. Bell v. Employers Mutual Casualty Co., 198 Wis. 2d 347, 541 N.W.2d 824 (Ct. App. 1995), 95-0301.

801.14 Annotation A motion to dismiss with prejudice cannot be heard ex parte and should be granted only on finding egregious conduct or bad faith. Failure to obtain personal service with due diligence does not amount to egregious conduct or bad faith. Haselow v. Gauthier, 212 Wis. 2d 580, 569 N.W.2d 97 (Ct. App. 1997), 96-3589.

801.14 Annotation 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 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 (1999), 97-1490.

801.14 Annotation 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 (1999), 96-3436.

801.14 Annotation A receptionist who accepted the receipt of pleadings delivered to an attorney’s office by a delivery service was a person in charge of the office within the meaning of sub. (2) and the papers had been properly “delivered.” Varda v. General Motors Corp., 2001 WI App 89, 242 Wis. 2d 756, 626 N.W.2d 346, 00-1720.

801.14 Annotation A circuit court may not enter a default judgment against a defendant on grounds that the defendant failed to file an answer with the court “within a reasonable time after service” under sub. (4) unless the court first determines that the late filing prejudiced either the plaintiff or the court. Split Rock Hardwoods, Inc. v. Lumber Liquidators, Inc., 2002 WI 66, 253 Wis. 2d 238, 646 N.W.2d 19, 00-1100.

801.145 801.145 Form of papers.

801.145(1) (1) Except for exhibits and wills, the size of all papers filed in court shall be no larger than 8 1/2 inches by 11 inches.

801.145(2) (2) The clerk of circuit court or register in probate shall return any paper not in conformity with sub. (1) to the person or party attempting to file it.

801.145 History History: Sup. Ct. Order, 120 Wis. 2d xv (1984).

801.15 801.15 Time.

801.15(1) (1) 

801.15(1)(a) (a) In this subsection, “holiday” means any day that is a holiday provided in s. 230.35 (4) (a) or a statewide legal holiday provided in s. 995.20 or both, and a full day on Good Friday.

801.15(1)(b) (b) Notwithstanding ss. 985.09 and 990.001 (4), in computing any period of time prescribed or allowed by chs. 801 to 847, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.

801.15(2) (2) 

801.15(2)(a) (a) When an act is required to be done at or within a specified time, the court may order the period enlarged but only on motion for cause shown and upon just terms. The 90 day period under s. 801.02 may not be enlarged. If the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect. The order of enlargement shall recite by its terms or by reference to an affidavit in the record the grounds for granting the motion.

801.15(2)(b) (b) The time within which a motion challenging the sufficiency of the evidence or for a new trial must be decided shall not be enlarged except for good cause. The order of extension must be made prior to the expiration of the initial decision period.

801.15(2)(c) (c) The time for initiating an appeal under s. 808.04, for deciding motions after verdict under s. 805.16 (3), and for making motions for reconsideration under s. 805.17 (3) or for relief from judgment or order under s. 48.46 (2) or 806.07 may not be enlarged.

801.15(4) (4) A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.

801.15(5) (5) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party:

801.15(5)(a) (a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.

801.15(5)(b) (b) If the notice or paper is served by facsimile transmission, by electronic mail, or by the electronic filing system under s. 801.18 and such transmission is completed between 5 p.m. and midnight, one day shall be added to the prescribed period.

801.15 History History: Sup. Ct. Order, 67 Wis. 2d 585, 610 (1975); 1975 c. 218; Sup. Ct. Order, 73 Wis. 2d xxxi (1976); 1977 c. 187 s. 135; 1977 c. 449; 1979 c. 89; 1983 a. 192 s. 304; 1985 a. 145; Sup Ct. Order, 130 Wis. 2d xi (1986); 1985 a. 332; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); Sup. Ct. Order, 160 Wis. 2d xiv (1991); Sup. Ct. Order, 161 Wis. 2d xvii (1991); Sup. Ct. Order No. 94-05, 183 Wis. 2d xix (1994); 1997 a. 187; 2005 a. 155; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; 2019 a. 30.

801.15 Cross-reference Cross-reference: See s. 32.05 (4) for exception to provision for added time in case of mailing.

801.15 Note Law Revision Committee Note, 1985: [Sub. (1)] Under the current statute, the time period specified by law or by a court relating to a court action or special proceeding is extended if the last day of the time period falls on a Saturday, Sunday or legal holiday. This amendment adds Good Friday, Christmas eve and New Year’s eve. The afternoon of Good Friday and the full day on December 24 and 31 are holidays for state employees, and the amendment will permit clerks to close their offices at these times. [85 Act 145]

801.15 Note Judicial Council Committee’s Note, 1976: The procedure under s. 801.15 (2) (a) for enlarging the period in which an act is required to be done under the rules of civil procedure cannot be used to enlarge the 60-day period under s. 801.02. See also s. 802.06 (2) (e) and (8).

801.15 Note Pars. (2) (b) and (c) are independent provisions. The enlargement of time “for good cause” provision in par. (b) does not apply to the time for appeal under s. 817.01, for motion after verdict under s. 805.16, and for relief from judgment under s. 806.07 as such a result would substantially impair the finality of judgments. The word “extended” is replaced by the word “enlarged” in par. (c) to comply with similar language in pars. (2) (a) and (b). [Re Order effective Jan. 1, 1977]

Effective date note Judicial Council Note, 1986: Sub. (1) is amended by extending from 7 to 11 days the periods from which Saturdays, Sundays and legal holidays are excluded. The change conforms to that made in Rule 6 (a), F.R.C.P. in 1985. [Re Order eff. 7-1-86]

Effective date note Judicial Council Note, 1986: Sub. (2) (c) is amended to clarify that, while the time for deciding motions after verdict may not be enlarged, the time for filing and hearing such motions may be enlarged by the court under revised s. 805.16 (1) and (2). [Re Order eff. 7-1-87]

Effective date note Judicial Council Note, 1991: The amendment to sub. (2) (c) prohibits the court form extending the time for making reconsideration motions under s. 805.17 (3). [Re Order eff. 7-1-91]

Effective date note Judicial Council Note, 1991: Sub. (5) (b) is created to allow one extra day to respond to papers served by facsimile transmission after normal business hours. Additional response time may be available under the computation rules of sub. (1) (b) if papers are so served on weekends or holidays. [Re Order eff. 7-1-91]

801.15 Note Judicial Council Note, 1994: Subsection (1) (b) is amended by excluding the last day of a time period from the computation if the clerk of courts office is closed all day.

801.15 Annotation A court has no authority to enlarge the time in which to file a complaint. Pulchinski v. Strnad, 88 Wis. 2d 423, 276 N.W.2d 781 (1979).

801.15 Annotation Error based on late service and filing of an affidavit was waived by the failure to object at a hearing. Dairyland Equipment Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 288 N.W.2d 852 (1980).

801.15 Annotation Notice of entry of judgment was “given” under s. 806.06 (5) when it was mailed. Sub. (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742, 295 N.W.2d 11 (Ct. App. 1980).

801.15 Annotation The trial court abused its discretion in enlarging the time to file an answer when the answer was served nine days after the deadline. Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W.2d 727 (1982).

801.15 Annotation Time computations under ss. 32.05 (10) (a) and 32.06 (10) are controlled by sub. (1), not s. 990.001 (4). Gangler v. Wisconsin Electric Power Co., 110 Wis. 2d 649, 329 N.W.2d 186 (1983).

801.15 Annotation Service of an answer was timely under the terms of a courtesy agreement. Oostburg State Bank v. United Savings & Loan Ass’n, 130 Wis. 2d 4, 386 N.W.2d 53 (1986).

801.15 Annotation Time periods under s. 805.16 may not be enlarged by showing excusable neglect under sub. (2) (a). Brookhouse v. State Farm Mutual Automobile Insurance Co., 130 Wis. 2d 166, 387 N.W.2d 82 (Ct. App. 1986).

801.15 Annotation The trial court lost jurisdiction to decide motions after verdict by consecutively extending the time for its decision under sub. (2) (b). Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 405 N.W.2d 354 (Ct. App. 1987).

801.15 Annotation Because a courtesy agreement was made after default, the court did not abuse its discretion by insisting on compliance with sub. (2) (a). Clark County v. B.T.U. Structures, Inc., 144 Wis. 2d 11, 422 N.W.2d 910 (Ct. App. 1988).

801.15 Annotation The trial court had discretion to allow a jury trial when fees under s. 814.61 (4) were not timely paid. Chitwood v. A.O. Smith Harvestore Products, Inc., 170 Wis. 2d 622, 489 N.W.2d 697 (Ct. App. 1992).

801.15 Annotation While clerical error is not always excusable, it is not as a matter of law inexcusable neglect. Sentry Insurance v. Royal Insurance Co. of America, 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995), 94-3428.

801.15 Annotation Sub. (2) (a) is applicable to excusable neglect by a trial judge. State v. Elliott, 203 Wis. 2d 95, 551 N.W.2d 850 (Ct. App. 1996), 96-0012.

801.15 Annotation Trial courts have discretion to shorten the five-day notice requirement for motions. Schopper v. Gehring, 210 Wis. 2d 208, 565 N.W.2d 187 (Ct. App. 1997), 96-2782.

801.15 Annotation Excusable neglect is conduct that might have been the act of a reasonably prudent person under the same circumstances. A court must look beyond the cause of the neglect to the interests of justice, considering both the need to afford litigants a day in court and to ensure prompt adjudication. Whether the dilatory party acted in good faith, whether the opposing party was prejudiced, and whether prompt remedial action took place are factors to consider. An attorney who relied on an oral courtesy agreement whose terms were not disputed and promptly filed for an extension acted with excusable neglect. Rutan v. Miller, 213 Wis. 2d 94, 570 N.W.2d 54 (Ct. App. 1997), 97-0547.

801.15 Annotation Under sub. (1) (b), the last day is included in determining time periods unless it is “a day the clerk of courts office is closed.” Whether or not the day is a “holiday” under sub. (1) (a) is not relevant. Klingbeil v. Perschke, 228 Wis. 2d 421, 596 N.W.2d 488 (Ct. App. 1999), 99-0488.