LRB-3637/1
PJH:wlj:jm
2011 - 2012 LEGISLATURE
February 9, 2012 - Introduced by Senator Zipperer, cosponsored by
Representatives T. Larson, Spanbauer, Endsley and Craig. Referred to
Committee on Judiciary, Utilities, Commerce, and Government Operations.
SB451,1,4
1An Act to renumber and amend 806.02 (1);
to amend 802.07 (5), 806.02 (2),
2806.02 (3), 806.02 (4) and 806.02 (5); and
to create 806.02 (1d) of the statutes;
3relating to: default judgments in certain civil claims, counterclaims, and cross
4claims.
Analysis by the Legislative Reference Bureau
Under current law, a plaintiff who files a civil lawsuit against a defendant may
obtain a default judgment against the defendant if, after being properly served with
the litigation papers, the defendant fails to respond properly and within the
appropriate time. When entering a default judgment against a defendant, the court
is required to determine that the defendant was properly served, that the court has
proper jurisdiction over the defendant, that the defendant did not join any issue of
law or fact, and that the time for joining an issue has expired. Upon making these
determinations and entering a default judgment against the defendant, the court
may require the plaintiff to submit proof of his or her damages and may award such
damages to the plaintiff.
Under current law, a defendant in a civil lawsuit may file a counterclaim
against the plaintiff and, under certain circumstances, a plaintiff or a defendant may
declare a cross claim against a coparty to a civil action.
Under this bill, a default judgment may be entered against a counterdefendant
or cross defendant in the same manner and upon the same showings as may be
entered against a defendant under current law.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB451, s. 1
1Section
1. 802.07 (5) of the statutes is amended to read:
SB451,2,62
802.07
(5) Separate trials; separate judgments. If the court orders separate
3trials as provided in s. 805.05 (2), judgment on a counterclaim or cross claim may be
4rendered in accordance with s. 806.01 (2)
or 806.02 when the court has jurisdiction
5so to do, even if the claims of the opposing party have been dismissed or otherwise
6disposed of.
SB451, s. 2
7Section
2. 806.02 (1) of the statutes is renumbered 806.02 (1m) and amended
8to read:
SB451,2,129
806.02
(1m) A default judgment may be rendered as provided in
this subsection
10and subs.
(1) (2) to (4) if no issue of law or fact has been joined and if the time for
11joining issue has expired. Any defendant
, counterdefendant, or cross defendant 12appearing in an action shall be entitled to notice of motion for judgment.
SB451, s. 3
13Section
3. 806.02 (1d) of the statutes is created to read:
SB451,2,1414
806.02
(1d) In this section:
SB451,2,1615
(a) "Counterdefendant" means a person against whom a counterclaim is filed
16pursuant to s. 802.07 (1), (2), or (4).
SB451,2,1817
(b) "Cross defendant" means a person against whom a cross claim is filed
18pursuant to s. 802.07 (3) or (4).
SB451, s. 4
19Section
4. 806.02 (2) of the statutes is amended to read:
SB451,3,620
806.02
(2) After filing the complaint and proof of service of the summons on one
21or more of the defendants
, counterdefendants, or cross defendants and an affidavit
22that the defendant
, counterdefendant, or cross defendant is in default for failure to
23join issue, the plaintiff
, counterclaimant, or cross claimant may move for judgment
1according to the demand of the complaint
, counterclaim, or cross claim. If the
2amount of money sought was excluded from the demand for judgment, as required
3under s. 802.02 (1m), the court shall require the plaintiff
, counterclaimant, or cross
4claimant to specify the amount of money claimed and provide that information to the
5court and to the other parties prior to the court rendering judgment. If proof of any
6fact is necessary for the court to give judgment, the court shall receive the proof.
SB451, s. 5
7Section
5. 806.02 (3) of the statutes is amended to read:
SB451,3,128
806.02
(3) If a defendant
, counterdefendant, or cross defendant fails to appear
9in an action within the time fixed in s. 801.09 the court shall, before entering a
10judgment against such defendant
, counterdefendant, or cross defendant, require
11proof of service of the summons in the manner required by s. 801.10 and, in addition,
12shall require further proof as follows:
SB451,3,1813
(a) Where a personal claim is made against the defendant
, counterdefendant,
14or cross defendant, the court shall require proof by affidavit or other evidence, to be
15made and filed, of the existence of any fact not shown by the complaint
, counterclaim,
16or cross claim which is needed to establish grounds for personal jurisdiction over the
17defendant
, counterdefendant, or cross defendant. The court may require such
18additional proof as the interests of justice require.
SB451,3,2319
(b) Where no personal claim is made against the defendant
, counterdefendant,
20or cross defendant, the court shall require such proofs, by affidavit or otherwise, as
21are necessary to show the court's jurisdiction has been invoked over the status,
22property
, or thing which is the subject of the action. The court may require such
23additional proof as the interests of justice require.
SB451, s. 6
24Section
6. 806.02 (4) of the statutes is amended to read:
SB451,4,9
1806.02
(4) In an action on express contract for recovery of a liquidated amount
2of money only, the plaintiff
, counterclaimant, or cross claimant may file with the
3clerk proof of personal service of the summons on one or more of the defendants
,
4counterdefendants, or cross defendants and an affidavit that the defendant
,
5counterdefendant, or cross defendant is in default for failure to join issue. The clerk
6shall render and enter judgment against the defendants
, counterdefendants, or cross
7defendants who are in default for the amount demanded in the complaint. Leaving
8the summons at the abode of a defendant
, counterdefendant, or cross defendant is
9not personal service within the meaning of this subsection.
SB451, s. 7
10Section
7. 806.02 (5) of the statutes is amended to read:
SB451,4,1411
806.02
(5) A default judgment may be rendered against any defendant
,
12counterdefendant, or cross defendant who has appeared in the action but who fails
13to appear at trial. If proof of any fact is necessary for the court to render judgment,
14the court shall receive the proof.
