Speedy hearing; rules of evidence.
If an answer is filed, the case shall be set down for a speedy hearing, but an adjudication of default and order shall first be entered against all persons who have not appeared and answered in the manner provided in sub. (3)
. If any person answering so demands, the trial shall not be adjourned for a period of longer than 72 hours beyond the opening of court on the day following the filing of the answer. At such hearing, subject to chs. 901
, the court shall receive the testimony of experts and evidence as to the literary, cultural or educational character of said matter and as to the manner and form of its production, publication, advertisement, distribution and exhibition. The dominant effect of the whole of such matter shall be determinative of whether said matter is obscene.
Findings and judgment.
If, after the hearing, the court or jury, unless its finding is contrary to law or to the great weight and clear preponderance of the evidence, determines that the matter is obscene, the court shall enter judgment that the matter is obscene. If it is determined that the matter is not obscene, the court shall enter judgment dismissing the complaint, and a total of not more than $100 in costs, in addition to taxable disbursements, may be awarded to the persons defending the matter, which shall be paid from the county treasury. Any judgment under this subsection may be appealed to the court of appeals under chs. 808
by any person adversely affected, and who is either interested in the publication, production, sale, loan, exhibition or distribution of the matter, or is the plaintiff district attorney.
Admissibility in criminal prosecutions.
In any trial for a violation of s. 944.21
, the proceeding under this section and the final judgment of the circuit court under sub. (3)
or the interlocutory adjudication under sub. (1m)
, shall be admissible in evidence on the issue of the obscenity of said matter and on the issue of the defendant's knowledge that said matter is obscene, provided, that if the judgment of the court sought to be introduced in evidence is one holding the matter to be obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the judgment of the court hereunder, and the criminal prosecution is based upon conduct by said defendant occurring more than 18 hours after such service or such appearance, whichever is earlier.
Sup. Ct. Order, 67 Wis. 2d 585, 721 (1975); 1975 c. 218
; 1977 c. 187
The provision of sub. (1m) that permits an interlocutory judgment prior to an adversary adjudication and of sub. (6) that permits admission of the interlocutory judgment in evidence in a criminal trial are unconstitutional. State v. I, A Woman—Part II, 53 Wis. 2d 102
, 191 N.W.2d 897
The notice procedures under sub. (1) meet due process requirements. State v. Erotomic, 87 Wis. 2d 536
, 275 N.W.2d 160
(Ct. App. 1979).
Rendition, perfection and entry of judgment. 806.06(1)(a)
A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge's written direction.
A judgment is entered when it is filed in the office of the clerk of court.
A judgment is perfected by the taxation of costs and the insertion of the amount thereof in the judgment.
A judgment is granted when given orally in open court on the record.
The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition.
After an order or judgment is entered, either party may serve upon the other a written notice of entry containing the date of entry.
A judgment may be rendered and entered at the instance of any party either before or after perfection. If the party in whose favor the judgment is rendered causes it to be entered, the party shall perfect the judgment within 30 days of entry or forfeit the right to recover costs. If the party against whom the judgment is rendered causes it to be entered, the party in whose favor the judgment is rendered shall perfect it within 30 days of service of notice of entry of judgment or forfeit the right to recover costs. If proceedings are stayed under s. 806.08
, judgment may be perfected at any time within 30 days after the expiration of the stay. If the parties agree to settle all issues but fail to file a notice of dismissal, the judge may direct the clerk to draft an order dismissing the action. No execution shall issue until the judgment is perfected or until the expiration of the time for perfection, unless the party seeking execution shall file a written waiver of entitlement to costs.
Notice of entry of judgment or order must be given within 21 days after the entry of judgment or order to constitute notice under s. 808.04 (1)
Sup. Ct. Order, 67 Wis. 2d 585, 724 (1975); 1975 c. 218
; Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981).
Judicial Council Committee's Note, 1979: Sub. (5) is amended by adding a reference to the entry of an order so as to conform with s. 808.04 (1), which establishes appeal time periods from the entry of a judgment “or" order. [Re Order effective Jan. 1, 1980]
Judicial Council Committee's Note, 1981: Subs. (3) and (5) are amended to clarify what constitutes a sufficient notice of entry to reduce the appeal time. The notice of entry must be a written document, other than the judgment or order, containing the date of entry and served after the entry of the judgment or order. The notice must accurately and completely inform the opposing party as to the date of entry. [Re Order effective Jan. 1, 1982]
Notice of entry of judgment was “given" within the meaning of sub. (5) when it was mailed. Section 801.15 (5) was inapplicable. Bruns v. Muniz, 97 Wis. 2d 742
, 295 N.W.2d 11
(Ct. App. 1980).
The last document in litigation should indicate on its face that for purposes of appeal it is a final order or judgment and that no subsequent document is contemplated. Radoff v. Red Owl Stores, Inc., 109 Wis. 2d 490
, 326 N.W.2d 240
Under s. 808.04 (1), notice of entry of judgment must be given within 21 days of the entry of judgment, not of signing, consistent with sub. (5). Linnmar, Inc. v. First Enterprises, Inc., 161 Wis. 2d 706
, 468 N.W.2d 753
(Ct. App. 1991).
Sub. (4) governs the timeliness of an application for attorney fees in a federal civil rights action. Hartman v. Winnebago County, 216 Wis. 2d 419
, 574 N.W.2d 222
No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123
, 239 Wis. 2d 244
, 618 N.W.2d 857
An action to enforce a contractual agreement to pay attorney fees in the event of a suit between the parties to the contract was subject to the time limit under sub. (4). Purdy v. Cap Gemini America, Inc., 2001 WI App 270
, 248 Wis. 2d 804
, 637 N.W.2d 763
Sub. (4) governs time limits when a judgment has been rendered. An order for consolidation is not a judgment and cannot trigger the time limits under sub. (4). Forman v. McPherson, 2004 WI App 145
, 275 Wis. 2d 604
, 685 N.W.2d 603
The prevailing party's claim for an award of attorney fees due under a contract does not affect the finality of a judgment or order that disposes of the entire matter in litigation as to one or more of the parties. There is no distinction between a claim for attorney fees based on a contract as opposed to one based on a statute. When the recovery of attorney fees is authorized by a statute or a contract, the attorney fees are litigation “disbursements and fees allowed by law” as set forth in s. 814.04 (2). McConley v. T.C. Visions, Inc., 2016 WI App 74
, 371 Wis. 2d 658
, 885 N.W.2d 816
When a party timely files its proposed bill of costs within the 30-day time limit for perfection set forth under sub. (4), the party's right to recover costs is not forfeited simply because the costs are objected to and the circuit court does not resolve that objection within 30 days. Instead, a circuit court clerk may exercise the adjournment powers granted by s. 814.10 (3) to effectively toll the 30-day time limit for a reasonable time, until the circuit court can conduct a hearing to resolve the dispute. Soletski v. Krueger International, Inc., 2019 WI App 7
, 385 Wis. 2d 787
, 924 N.W.2d 207
How to Collect on a Judgment After the Demise of the Creditor's Lien. Stelljes. Wis. Law. July/Aug. 2016.
Relief from judgment or order. 806.07(1)(1)
On motion and upon such terms as are just, the court, subject to subs. (2)
, may relieve a party or legal representative from a judgment, order or stipulation for the following reasons:
Mistake, inadvertence, surprise, or excusable neglect;
Fraud, misrepresentation, or other misconduct of an adverse party;
The judgment has been satisfied, released or discharged;
A prior judgment upon which the judgment is based has been reversed or otherwise vacated;
It is no longer equitable that the judgment should have prospective application; or
Any other reasons justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and, if based on sub. (1) (a)
, not more than one year after the judgment was entered or the order or stipulation was made. A motion based on sub. (1) (b)
shall be made within the time provided in s. 805.16
. A motion under this section does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from judgment, order, or proceeding, or to set aside a judgment for fraud on the court.
A motion under this section may not be made by an adoptive parent to relieve the adoptive parent from a judgment or order under s. 48.91 (3)
granting adoption of a child. A petition for termination of parental rights under s. 48.42
and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adoptive child.
Sup. Ct. Order, 67 Wis. 2d 585, 726 (1975); 1975 c. 218
; 1997 a. 114
There was no abuse of discretion in finding no excusable mistake when the movant had answered a complaint by business letter, was an experienced business person, was well-educated, and had undergone a nearly identical experience in a former case. Hansher v. Kaishian, 79 Wis. 2d 374
, 255 N.W.2d 564
A lawyer's failure to answer a complaint due to misplacing a client's papers while moving an office did not relieve the client from the resulting default judgment. Dugenske v. Dugenske, 80 Wis. 2d 64
, 257 N.W.2d 865
The trial court abused its discretion in refusing to consider whether the defendant, in sending a letter to plaintiff's counsel purporting to be an answer, had committed an excusable mistake. Maier Construction, Inc. v. Ryan, 81 Wis. 2d 463
, 260 N.W.2d 700
Section 805.17 (3) does not limit a trial court's discretionary power to grant relief under sub. (1) (h) when reasons justifying relief are apparent to the court. Grodin v. Smith, 82 Wis. 2d 667
, 264 N.W.2d 239
A motion filed over six months after the entry of judgment was not filed within a “reasonable time" under sub. (2). Rhodes v. Terry, 91 Wis. 2d 165
, 280 N.W.2d 248
A postjudgment order of the circuit court denying a motion during the pendency of an appeal is not reviewable on an appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462
, 283 N.W.2d 603
(Ct. App. 1979).
Sub. (1) (h) is to be liberally construed to allow relief from judgments whenever appropriate to accomplish justice. Conrad v. Conrad, 92 Wis. 2d 407
, 284 N.W.2d 674
Neglect by both a lawyer and client was not “excusable." Charolais Breeding Ranches, Ltd. v. Wiegel, 92 Wis. 2d 498
, 285 N.W.2d 720
The trial court did not abuse its discretion in setting aside a judicial sale when the buyer based its bid on incorrect figures in the judgment of foreclosure. Family Savings & Loan Ass'n v. Barkwood Landscaping Co., 93 Wis. 2d 190
, 286 N.W.2d 581
Relief from a judgment entered in a ch. 227 review may not be granted under this section. Charter Manufacturing Co. v. Milwaukee River Restoration Council, Inc., 102 Wis. 2d 521
, 307 N.W.2d 322
(Ct. App. 1981).
A judgment entered based on an erroneous determination by the court of its own powers is not necessarily void. PSC v. Krist, 104 Wis. 2d 381
, 311 N.W.2d 624
New testing methods to establish paternity cannot be used to affect the finality of a long-decided paternity determination. State ex rel. R.A.S. v. J.M., 114 Wis. 2d 305
, 338 N.W.2d 851
(Ct. App. 1983).
Sub. (1) (h) allows relief even if the claim sounds in sub. (1) (a), (b), or (c) if extraordinary circumstances justify relief. State ex rel. M.L.B. v. D.G.H., 122 Wis. 2d 536
, 363 N.W.2d 419
The “reasonable time" requirement of sub. (2) does not apply to void judgments. Neylan v. Vorwald, 124 Wis. 2d 85
, 368 N.W.2d 648
An order granting a motion under sub. (1) (a) is not appealable as of right. Wellens v. Kahl Insurance Agency, Inc., 145 Wis. 2d 66
, 426 N.W.2d 41
(Ct. App. 1988).
An order vacating a judgment arises in the context of an underlying action and is not appealable as of right because additional proceedings will follow. Wellens v. Kahl Insurance Agency, Inc., 145 Wis. 2d 66
, 426 N.W.2d 41
(Ct. App. 1988).
A court may not use sub. (1) (h) purely as a vehicle to extend the time period for appeal. Eau Claire County v. Employers Insurance of Wausau, 146 Wis. 2d 101
, 430 N.W.2d 579
(Ct. App. 1988).
A finding that there are grounds to reopen a divorce judgment under sub. (1) does not require reopening it. The trial court may exercise discretion in determining whether there are factors militating against reopening the judgment. Johnson v. Johnson, 157 Wis. 2d 490
, 460 N.W.2d 166
(Ct. App. 1990).
A change in the judicial view of an established rule of law is not an extraordinary circumstance justifying relief under sub. (1) (h). Schwochert v. American Family Mutual Insurance Co., 166 Wis. 2d 97
, 479 N.W.2d 190
(Ct. App. 1991).
A property division may be modified under this section, however the supremacy clause prevents a property division to be modified after a debt thereunder is discharged in bankruptcy. Spankowski v. Spankowski, 172 Wis. 2d 285
, 493 N.W.2d 737
(Ct. App. 1992).
A “reasonable time" to bring a motion under sub. (1) (h) can only be determined after a thorough review of all relevant factors. State ex rel. Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618
, 511 N.W.2d 868
A bank that failed to file an answer due to mislaying papers was not held to the same standard for excusable neglect as an attorney or insurance company. Baird Contracting, Inc. v. Mid Wisconsin Bank of Medford, 189 Wis. 2d 321
, 525 N.W.2d 276
(Ct. App. 1994).
In determining whether to overturn a default judgment, the court must consider that the statute regarding vacation is remedial and should be liberally construed and that giving people their day in court is favored while default judgment is not. Prompt response to the default is also considered. Baird Contracting, Inc. v. Mid Wisconsin Bank of Medford, 189 Wis. 2d 321
, 525 N.W.2d 276
(Ct. App. 1994).
A successor judge in a circuit court has the authority to modify or reverse rulings of a predecessor judge if the predecessor judge was empowered to make the modification or reversal. Dietrich v. Elliott, 190 Wis. 2d 816
, 528 N.W.2d 17
(Ct. App. 1995).
Case law is not a “prior judgment" under sub. (1) (f). Relief from a judgment will not be granted because the law relied on in adjudicating a case has been overruled in unrelated proceedings. Schauer v. DeNeveu Homeowners Ass'n, 194 Wis. 2d 62
, 533 N.W.2d 470
The one-year time limit in sub. (2) cannot be tolled or extended under any circumstances for purposes of relief under sub. (1) (a). Miro Tool & Mfg., Inc. v. Midland Machinery, Inc., 205 Wis. 2d 650
, 556 N.W.2d 437
(Ct. App. 1996), 95-2785
An independent action for equitable relief from judgments or final orders procured by fraud is not prevented by this section. As sub. (2) does not prescribe a time limit for bringing an independent action, only laches applies. Walker v. Tobin, 209 Wis. 2d 72
, 568 N.W.2d 303
(Ct. App. 1997), 96-0827
When the record demonstrates the circuit court's intention to send notice of an order, but it failed to do so and acknowledged the mistake, the court could effectively extend the time to appeal by vacating and reinstating the order. Edland v. Wisconsin Physicians Service Insurance Corp., 210 Wis. 2d 638
, 563 N.W.2d 519
To obtain relief under sub. (2) from a judgment obtained as the result of fraud on a court, the complaining party must have responded without inexcusable neglect, which includes unexplained delay in responding to the original action. Dekker v. Wergin, 214 Wis. 2d 17
, 570 N.W.2d 861
(Ct. App. 1997), 96-3258
To vacate a default judgment under sub. (1) (a), the moving party must set forth a meritorious defense, which is a defense good at law that would survive a motion for judgment on the pleadings. J.L. Phillips & Associates, Inc. v. E&H Plastic Corp., 217 Wis. 2d 348
, 577 N.W.2d 13
It was error to define inadvertence under sub. (1) (a) so that virtually any failure on the part of an attorney to predict and appreciate the potential collateral legal consequences of his her own proposed settlement language would have been at least in part from inadvertence. Milwaukee Women's Medical Service, Inc. v. Scheidler, 228 Wis. 2d 514
, 598 N.W.2d 588
(Ct. App. 1999), 98-1139
A circuit 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 sub. (1). In addition, for the preemptive use of sub. (1) to apply, the court must find that the party opposing the default judgment has a meritorious defense to the underlying action. Shirk v. Bowling, Inc., 2001 WI 36
, 242 Wis. 2d 153
, 624 N.W.2d 375
The existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. A contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. State v. Williams, 2001 WI App 155
, 246 Wis. 2d 722
, 631 N.W.2d 623
A circuit court may properly invoke this section to open the property division provisions of a divorce judgment incorporating a confirmed arbitrated award. Franke v. Franke, 2004 WI 8
, 268 Wis. 2d 360
, 674 N.W.2d 832
The competing interests of finality and fairness coalesce when considering sub. (1) (h) and principles of res judicata. Res judicata and collateral estoppel are founded on principles of fundamental fairness and should not deprive a party of the opportunity to have a full and fair determination of an issue. When the record demonstrated that an adjudicated father never had an opportunity for a full and fair determination of the question of paternity, res judicata should not have barred relief. Shanee Y. v. Ronnie J., 2004 WI App 58
, 271 Wis. 2d 242
, 677 N.W.2d 684
Lack of competency is not jurisdictional and does not result in a void judgment. Accordingly, it is not true that a motion for relief from judgment on grounds of lack of circuit court competency may be made at any time. If a judgment is entered by a circuit court lacking competency and a competency challenge has been waived, sub. (1) (h) may provide an avenue for relief in an extraordinary case. Village of Trempealeau v. Mikrut, 2004 WI 79
, 273 Wis. 2d 76
, 681 N.W.2d 190
The burden of proof is on the party seeking to set aside or vacate a default judgment when the question of proper service is involved. The evidence necessary to set aside the judgment is evidence sufficient to allow a reviewing court to determine that the circuit court's findings of fact were contrary to the great weight and clear preponderance of the credible evidence. Richards v. First Union Securities, Inc., 2006 WI 55
, 290 Wis. 2d 620
, 714 N.W.2d 913
In determining whether the party seeking relief from a default judgment has proven excusable neglect, the court should consider whether the moving party has acted promptly to remedy the default judgment, whether the default judgment imposes excessive damages, and whether vacatur of the judgment is necessary to prevent a miscarriage of justice. The court must also consider that the law favors the finality of judgments, and the reluctance to excuse neglect when too easy a standard for the vacatur of default judgments would reduce deterrence to litigation-delay. Mohns, Inc. v. TCF National Bank, 2006 WI App 65
, 292 Wis. 2d 243
, 714 N.W.2d 245
The discretionary authority afforded the circuit courts by sub. (1) (h) to vacate final judgments is to be used sparingly. The court should consider several factors, including whether: 1) the judgment was the result of the conscientious, deliberate, well-informed choice of the claimant; 2) the claimant received the effective assistance of counsel; 3) relief is sought from a judgment to which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments; 4) there is a meritorious defense to the claim; and 5) there are intervening circumstances making it inequitable to grant relief. Allstate Insurance Co. v. Brunswick Corp., 2007 WI App 221
, 305 Wis. 2d 400
, 740 N.W.2d 888
The vigor with which the supreme court denounces a previous decision is not a crucial consideration and itself does not demonstrate unique and extraordinary circumstances under sub. (1) (h). While a circuit court should consider factors bearing upon the equities of the case, the mind set of the supreme court is not such a factor. Allstate Insurance Co. v. Brunswick Corp., 2007 WI App 221
, 305 Wis. 2d 400
, 740 N.W.2d 888
Sub. (1) (h) does not require a finding of excusable neglect. A circuit court is to consider the five interest of justice factors in determining whether extraordinary circumstances are present under sub. (1) (h) such that relief from a judgment, including a default judgment, is appropriate. Miller v. Hanover Insurance Co., 2010 WI 75
, 326 Wis. 2d 640
, 785 N.W.2d 493
A circuit court may not award a new trial to a convicted criminal defendant in the interest of justice under sub. (1) (g) or (h). Sections 974.02 and 974.06 were written to provide the primary statutory means of postconviction, appeal, and post-appeal relief for convicted criminal defendants. State v. Henley, 2010 WI 97
, 328 Wis. 2d 544
, 787 N.W.2d 350
When the circuit court's clear and acknowledged mistake deprives a party of its right to appeal, this section may provide a basis for vacating and reentering the order or judgment. Werner v. Hendree, 2011 WI 10
, 331 Wis. 2d 511
, 795 N.W.2d 423