Chapter 807

807.07 Annotation Sub. (2) applies only at the trial court level. It does not confer appellate jurisdiction on the supreme court when an appeal is first mistakenly taken to the circuit court. State v. Jakubowski, 61 Wis. 2d 220, 212 N.W.2d 155 (1973).

807.07 Annotation Mere retention of an appellant’s brief prior to making a motion to dismiss is not participation in the appeal and does not constitute a waiver of an objection to jurisdiction. Prior holdings to the contrary are overruled. State v. Van Duyse, 66 Wis. 2d 286, 224 N.W.2d 603 (1975).

807.07 Annotation When a claimant timely appealed an adverse worker’s compensation decision in good faith but erroneously captioned the appeal papers, the trial court abused its discretion by dismissing the action. Cruz v. DILHR, 81 Wis. 2d 442, 260 N.W.2d 692 (1978).

807.07 Annotation Sub. (1) does not apply to petitions to appeal under s. 808.10. First Wisconsin National Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979).

807.07 Annotation The court of appeals erred in failing to exercise discretion under sub. (1) to permit an amendment of a notice of appeal. Northridge Bank v. Community Eye Care Center, Inc., 94 Wis. 2d 201, 287 N.W.2d 810 (1980).

807.07 Annotation Sub. (2) applies to actions for review under ch. 227. Shopper Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 344 N.W.2d 115 (1984).

807.07 Annotation Sub. (2) permits transfer of a case when the action is originally filed in a court lacking subject matter jurisdiction or when the action is filed in a court of improper venue. Shopper Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 344 N.W.2d 115 (1984).

807.07 Annotation “Return” is a long-standing term of art that refers to the official record of the body whose decision is being reviewed and that must be filed with the reviewing court in a certiorari action. Because sub. (1) provides that “return” must be “duly made” before the respondent’s participation in the action waives jurisdictional objections, when the respondent’s answer was filed before return was made to the circuit court, the answer did not waive its right to contest personal jurisdiction. Bergstrom v. Polk County, 2011 WI App 20, 331 Wis. 2d 678, 795 N.W.2d 482, 09-2572.

807.07 Annotation The default remedy when a court lacks competency is dismissal under s. 802.06 (8). However, when the lack of competency derives from an improperly venued case, the court may transfer the case to a proper venue under sub. (2) so long as the error arose from a good faith error. DWD v. LIRC, 2016 WI App 21, 367 Wis. 2d 609, 877 N.W.2d 620, 14-2928.

807.08 807.08 Borrowing court files regulated. The clerk shall not permit any paper filed in the clerk’s office to be taken therefrom unless upon written order of a judge of the court. The clerk shall take a written receipt for all papers so taken and preserve the same until such papers are returned. Papers so taken shall be returned at once upon request of the clerk or presiding judge, and no paper shall be kept longer than 10 days.

807.08 History History: Sup. Ct. Order, 67 Wis. 2d 585, 745 (1975); 1993 a. 486.

807.08 Annotation Clerks of court may not send original records of criminal cases to the public defender prior to appeal unless a judge authorizes the release. 69 Atty. Gen. 63.

807.09 807.09 Conciliators.

807.09(1) (1) A circuit judge of the circuit court of any county may appoint and remove at any time, any retired or former circuit or county court judge to act, in matters referred by the judge and in conciliation matters. When a matter for conciliation is referred for such purpose, the conciliator shall have full authority to hear, determine and report findings to the court. Such conciliators may be appointed circuit court commissioners under SCR 75.02 (1).

807.09(2) (2) The circuit judges of such county shall make rules, not inconsistent with law, governing procedure before and pertaining to such conciliators and the county board shall fix and provide for their compensation.

807.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975); 1975 c. 218; 1977 c. 187 s. 135; 1977 c. 323 s. 16; 2001 a. 61.

807.10 807.10 Settlements in behalf of minors or individuals adjudicated incompetent; judgments.

807.10(1) (1) A compromise or settlement of an action or proceeding to which a minor or individual adjudicated incompetent is a party may be made by the guardian, if the guardian is represented by an attorney, or the guardian ad litem with the approval of the court in which such action or proceeding is pending.

807.10(2) (2) A cause of action in favor of or against a minor or individual adjudicated incompetent may, without the commencement of an action thereon, be settled by the guardian, if the guardian is represented by an attorney, with the approval of the court appointing the guardian, or by the guardian ad litem with the approval of any court of record. An order approving a settlement or compromise under this subsection and directing the consummation thereof shall have the same force and effect as a judgment of the court.

807.10(3) (3) If the amount awarded to a minor or individual adjudicated incompetent by judgment or by an order of the court approving a compromise settlement of a claim or cause of action of the minor or individual does not exceed the amount specified under s. 867.03 (1g) (intro.), exclusive of interest and costs and disbursements, and if there is no guardian of the ward, the court may upon application by the guardian ad litem after judgment, or in the order approving settlement, fix and allow the expenses of the action, including attorney fees and fees of guardian ad litem, authorize the payment of the total recovery to the clerk of the court, authorize and direct the guardian ad litem upon the payment to satisfy and discharge the judgment, or to execute releases to the parties entitled thereto, and enter into a stipulation dismissing the action upon its merits. The order shall also direct the clerk upon the payment to pay the costs, disbursements, and expenses of the action and to dispose of the balance in a manner provided in s. 54.12 (1), as selected by the court. The fee for the clerk’s services for handling, depositing, and disbursing funds under this subsection is prescribed in s. 814.61 (12) (a).

807.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 746 (1975); 1975 c. 218; 1981 c. 317; 1997 a. 290; 1999 a. 32; 2005 a. 387.

807.10 Annotation The quasi-judicial immunity of a guardian ad litem applies only to liability for the negligent performance of the guardian ad litem’s duties, not as a shield against court-imposed sanctions for failure to obey a court order. Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210.

807.10 Annotation Whether an individual has satisfied the standard for mental incompetence under this section should be determined by considering the individual’s ability to: 1) reasonably understand pertinent information; 2) rationally evaluate litigation choices based upon that information; and 3) rationally communicate with, assist, and direct counsel. Kainz v. Ingles, 2007 WI App 118, 300 Wis. 2d 670, 731 N.W.2d 313, 06-0963.

807.10 Annotation Because the claim was resolved when the plaintiff took judgment against the defendant’s insurer, the requirement that settlements involving minors be approved by the court was not implicated. Parsons v. American Family Insurance Co., 2007 WI App 211, 305 Wis. 2d 630, 740 N.W.2d 399, 06-2481.

807.11 807.11 Orders: rendition and entry.

807.11(1) (1) An order is rendered when it is signed by the judge.

807.11(2) (2) An order is entered when it is filed in the office of the clerk of court.

807.11 History History: Sup. Ct. Order, 67 Wis. 2d 585, 747 (1975).

807.11 Annotation An oral order of a state court that an injunction be issued was valid even though the case was removed to federal court before the order was signed. Heidel v. Voight, 456 F. Supp. 959 (1978).

807.12 807.12 Suing by fictitious name or as unknown; partners’ names unknown.

807.12(1) (1) When the name or a part of the name of any defendant, or when any proper party defendant to an action to establish or enforce, redeem from or discharge a lien or claim to property is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, or as an unknown heir, representative, owner or person as the case may require, adding such description as may reasonably indicate the person intended. But no person whose title to or interest in land appears of record or who is in actual occupancy of land shall be proceeded against as an unknown owner.

807.12(2) (2) When the name of such defendant is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed.

807.12(3) (3) In an action against a partnership, if the names of the partners are unknown to the plaintiff, all proceedings may be in the partnership name until the names of the partners are ascertained, whereupon the process, pleadings and all proceedings shall be amended by order directing the insertion of such names.

807.12 History History: Sup. Ct. Order, 67 Wis. 2d 585, 748 (1975).

807.12 Annotation This section does not authorize judgment against an unnamed individual. Miller v. Smith, 100 Wis. 2d 609, 302 N.W.2d 468 (1981).

807.12 Annotation When an action against an unnamed defendant under this section was filed on the last day of the limitation period and amended process naming the defendant was served within 60 days after filing, the action was not barred. Relation back requirements of s. 802.09 (3) were inapplicable. Lak v. Richardson-Merrell, Inc., 100 Wis. 2d 641, 302 N.W.2d 483 (1981).

807.12 Annotation A fictitiously designated defendant’s right to extinction of an action does not effectively vest until 60 days after the statute of limitations runs. Lavine v. Hartford Accident & Indemnity Co., 140 Wis. 2d 434, 410 N.W.2d 623 (Ct. App. 1987).

807.12 Annotation A cause of action does not accrue until the plaintiff knows the tortfeasor’s identity or reasonably should have discovered it. Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989).

807.13 807.13 Telephone and audiovisual proceedings.

807.13(1) (1) Oral arguments. The court may permit any oral argument by telephone.

807.13(2) (2) Evidentiary hearings. In civil actions and proceedings, including those under chs. 48, 51, 54, and 55, the court may admit oral testimony communicated to the court on the record by telephone or live audiovisual means, subject to cross-examination, when:

807.13(2)(a) (a) The applicable statutes or rules permit;

807.13(2)(b) (b) The parties so stipulate; or

807.13(2)(c) (c) The proponent shows good cause to the court. Appropriate considerations are:

807.13(2)(c)1. 1. Whether any undue surprise or prejudice would result;

807.13(2)(c)2. 2. Whether the proponent has been unable, after due diligence, to procure the physical presence of the witness;

807.13(2)(c)3. 3. The convenience of the parties and the proposed witness, and the cost of producing the witness in relation to the importance of the offered testimony;

807.13(2)(c)4. 4. Whether the procedure would allow full effective cross-examination, especially where availability to counsel of documents and exhibits available to the witness would affect such cross-examination;

807.13(2)(c)5. 5. The importance of presenting the testimony of witnesses in open court, where the finder of fact may observe the demeanor of the witness, and where the solemnity of the surroundings will impress upon the witness the duty to testify truthfully;

807.13(2)(c)6. 6. Whether the quality of the communication is sufficient to understand the offered testimony;

807.13(2)(c)7. 7. Whether a physical liberty interest is at stake in the proceeding; and

807.13(2)(c)8. 8. Such other factors as the court may, in each individual case, determine to be relevant.

807.13(3) (3) Conferences. Whenever the applicable statutes or rules so permit, or the court otherwise determines that it is practical to do so, conferences in civil actions and proceedings may be conducted by telephone.

807.13(4) (4) Notice; reporting; effect of actions taken; access. In any proceeding conducted by telephone under this section:

807.13(4)(a) (a) If the proceeding is required to be reported, a court reporter shall be in simultaneous voice communication with all parties to the call, whether or not in the physical presence of any of them.

807.13(4)(b) (b) Parties entitled to be heard shall be given prior notice of the manner and time of the proceeding. Any participant other than the reporter electing to be present with any other participant shall give reasonable notice thereof to the other participants.

807.13(4)(c) (c) Regardless of the physical location of any party to the call, any waiver, stipulation, motion, objection, decision, order or any other action taken by the court or a party to a reported telephone hearing has the same effect as if made in open court.

807.13(4)(d) (d) With the exception of scheduling conferences and pretrial conferences, proceedings shall be conducted in a courtroom or other place reasonably accessible to the public. Participants in the proceeding may participate by telephone from any location or may elect to be physically present with one or more of the other participants. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker or, upon request to the court, by making a person party to the telephone call without charge.

807.13 History History: Sup. Ct. Order, 141 Wis. 2d xiii (1987); Sup. Ct. Order, 158 Wis. 2d xvii (1990); 1991 a. 32; 1997 a. 252; 1999 a. 85; 2005 a. 387.

Effective date note Judicial Council Note, 1988: This section [created] allows oral arguments to be heard, evidence to be taken, or conferences to be conducted, by telephone. Sub. (4) prescribes the basic procedure for such proceedings. [Re Order eff. 1-1-88]

Effective date note Judicial Council Note, 1990: The change in sub. (2) (c) (intro.) from “interest of justice” to “good cause” is not intended as substantive, but merely to conform it to the language used in other statutes relating to use of telephonic procedures in judicial proceedings. SS. 967.08, 970.03 (13), 971.14 (1) (c) and (4) (b), and 971.17 (2), Stats. [Re Order eff. 1-1-91]

807.13 Annotation The criteria found in sub. (2) (c) for telephone testimony are similar in many ways to the criteria found in s. 885.56 (1) for videoconferencing testimony, and the procedure for requesting telephonic testimony under sub. (2) (c) is consistent with the procedure for requesting videoconferencing testimony under s. 885.60. However, sub. (2) does not apply to postconviction hearings. Sections 885.56 and 885.60 are the pertinent statutes that govern a circuit court’s consideration of a defendant’s motion for remote testimony. State v. Atwater, 2021 WI App 16, 396 Wis. 2d 535, 958 N.W.2d 533, 19-1977.

807.13 Annotation Speaker-Telephone Testimony in Civil Jury Trials: The Next Best Thing to Being There? Kuehn. 1988 WLR 293.

807.13 Annotation Lights, Camera, Action: Videoconference Trial Testimony. Mondschein. Wis. Law. July 1997.

807.14 807.14 Interpreters. On request of any party, the court may permit an interpreter to act in any civil proceeding other than trial by telephone or live audiovisual means.

807.14 History History: Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1997 a. 252.

807.14 Note Judicial Council Note, 1988: This section [created] allows interpreters to serve by telephone or live audio-visual means in civil proceedings other than trials, on request of any party and approval by the court. [Re Order effective Jan. 1, 1988]

807.14 Annotation Se Habla Everything: The Right to an Impartial, Qualified Interpreter. Araiza. Wis. Law. Sept. 1997.

807.15 807.15 Penalty for certain actions by prisoners.

807.15(1) (1) In this section, “prisoner” has the meaning given in s. 801.02 (7) (a) 2.

807.15(2) (2) In any action or special proceeding, including a petition for a common law writ of certiorari, brought by a prisoner, the court may, on its own motion or on the motion of any party, order the department of corrections to extend the prisoner’s mandatory release date calculated under s. 302.11 (1) or the prisoner’s eligibility for release to extended supervision under s. 302.113 (3) (bm) or 302.114 (3) (c) or order the sheriff to deprive the prisoner of good time under s. 302.43 if the court finds that any of the following applies:

807.15(2)(a) (a) The action or special proceeding was filed for a malicious purpose.

807.15(2)(b) (b) The action or special proceeding was filed solely to harass the party against which it was filed.

807.15(2)(c) (c) The prisoner testifies falsely or otherwise knowingly offers false evidence or provides false information to the court.

807.15(3) (3) 

807.15(3)(a) (a) Subject to pars. (b) and (c), if a court orders the department of corrections to extend a prisoner’s mandatory release date or eligibility for release to extended supervision or orders the sheriff to deprive the prisoner of good time under sub. (2), the order shall specify the number of days by which the mandatory release date or eligibility for release to extended supervision is to be extended or the good time deprived.

807.15(3)(b) (b) An order under sub. (2) to extend a prisoner’s mandatory release date or deprive a prisoner of good time may not require the prisoner to serve more days than provided for under the prisoner’s sentence.

807.15(3)(c) (c) An order under sub. (2) to extend the eligibility for release to extended supervision of a prisoner subject to s. 302.113 may not require the prisoner to serve more days in prison than the total length of the prisoner’s bifurcated sentence.

807.15(4) (4) This section applies to prisoners who committed an offense on or after September 1, 1998.

807.15 History History: 1997 a. 133, 283.