Section 807.07. Irregularities and lack of jurisdiction over the parties waived on appeal; jurisdiction exercised; transfer to proper court.

 

(1)  When an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction over the parties of the appellate court, unless the respondent moves to dismiss such appeal before taking or participating in any other proceedings in said appellate court. If it appears upon the hearing of such motion that such appeal was attempted in good faith the court may allow any defect or omission in the appeal papers to be supplied, either with or without terms, and with the same effect as if the appeal had been originally properly taken.

(2)  If the tribunal from which an appeal is taken had no jurisdiction of the subject matter and the court to which the appeal is taken has such jurisdiction, the court shall, if it appears that the action or proceeding was commenced in the good faith and belief that the first named tribunal possessed jurisdiction, allow it to proceed as if originally commenced in the proper court and shall allow the pleadings and proceedings to be amended accordingly; and in all cases in every court where objection to its jurisdiction is sustained the cause shall be certified to some court having jurisdiction, provided it appears that the error arose from mistake.

Sup. Ct. Order, 67 Wis. 2d 744; 1975 c. 218 ; Sup. Ct. Order, 92 Wis. 2d xiii (1979). Judicial Council Committee's Note, 1979: Sub. (1) is amended to clarify that it addresses jurisdiction over the parties, and not the subject matter jurisdiction of the appellate court. Lack of subject matter jurisdiction of an appellate court cannot be waived. Sub. (1) cannot be used to cure defects concerning subject matter jurisdiction of an appellate court. [Re Order effective Jan. 1, 1980] This section does not confer jurisdiction on the court to hear an appeal in a criminal case when the appeal is not timely. Scheid v. State, 60 Wis. 2d 575 , 211 N.W.2d 458 (1973). 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). 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 (1974). 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). 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). 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, 94 Wis. 2d 201 , 287 N.W.2d 810 (1980). Sub. (2) applies to actions for review under ch. 227. Shopper Advertiser v. DOR 117 Wis. 2d 223 , 344 N.W.2d 115 (1984). Sub. (2) permits transfer of a case when the action was originally filed in a court lacking subject matter jurisdiction or when the action was filed in a court of improper venue. Shopper Advertiser, Inc. v. DOR, 117 Wis. 2d 223 , 344 N.W.2d 115 (1984), 81-1409 . "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 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 . 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 , ___ Wis. 2d ___, ___ N.W.2d ___, 14-2928 .