Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390
s.
252
; Sup. Ct. Order, 123 Wis. 2d xix (1985); Sup. Ct. Order, 131 Wis. 2d xv (1986);
1987 a. 403
; Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No.
93-19
, 179 Wis. 2d xxiii; Sup. Ct. Order No.
00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No.
02-01
, 2002 WI 120, 255 Wis. 2d xiii;
2005 a. 434
.
Cross-reference:
See also s.
767.217 (2)
for appeals involving child support and maintenance.
Court of Appeals Note, 1986:
Sub. (1) (a) is amended to require appellants to file a docketing statement in the court of appeals on a form prescribed by the court at the time the notice of appeal is filed in the trial court. The docketing statement will provide the court with information for its expedited appeals program pursuant to s. 809.17 and the rules and procedures set forth in Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended March 1, 1986). Docketing statement forms are available in the offices of clerks of the circuit courts. [Re Order effective January 1, 1987]
Judicial Council Committee's Note, 1978:
Sub. (1) (a) establishes the same procedure for initiating a review by the Court of Appeals whether it be the statutory appeal or constitutional writ of error. Both are begun by filing a notice of appeal in the trial court. The prior procedure under which a person could obtain a writ of error from the Supreme Court and then file it in the trial court at his leisure is eliminated. It is important to recognize that the right to seek review by writ of error as established by the Constitution is not abolished, but the procedure for seeking that review is made uniform with that for filing an appeal.
The second sentence of sub. (1) (b) is designed to change the law as declared in former s. 817.11 (4), and the decisions of the Supreme Court interpreting former s. 269.59 (1), under which the Supreme Court was vested with subject matter jurisdiction when an appealable order was entered. Under former s. 817.11 (4), the notice of appeal was necessary only to confer personal jurisdiction which could have been waived. The court often had to decide whether the respondent by some conduct, such as signing a stipulation or receiving a brief, had waived any objection to personal jurisdiction. The result was that a judgment of a trial court in Wisconsin was never completely final because even after the expiration of the time for an appeal a party could still appeal, and if the respondent failed to object or take some step that could be considered as participating in the appeal prior to objecting, the Supreme Court was able to review the judgment. This section conforms Wisconsin practice to that in the federal system and most other states.
Sub. (2) (a) provides that appellants whose interests are substantially identical may proceed jointly or separately. See Rule 3 (b), Federal Rules of Appellate Procedure (FRAP). If they do not wish to proceed jointly, or their interests are not the same, or if they are challenging from the same judgment or order, the subsequent appeal should be docketed with the first appeal, but the second person appealing has the same procedural rights, such as filing of briefs, as the first appellant. The respondent has separate briefing rights as to each appellant and co-appellant filing a separate brief. It is anticipated under this section that all appeals arising out of the same case filed within the same appeal period will be considered in a single appeal and not be treated as separate cases in the Court of Appeals.
Sub. (2) (b). The respondent who desires to challenge a judgment or order must file a notice of cross-appeal. Notices of review are abolished. Under former s. 817.12, it was very difficult to ascertain when a notice of review or cross-appeal was appropriate. Requiring a notice of cross-appeal in each instance eliminates this confusion. The respondent is given a minimum of 30 days after the filing of the notice of appeal to determine whether to file a cross-appeal. As was the case under former s. 817.12, a respondent loses the right to cross-appeal if the cross-appeal is not filed within the specified time.
Sub. (3). Appeals from judgments or orders in separate cases in the trial court are docketed as separate appeals in the Court of Appeals. If appropriate, these cases can be consolidated after docketing by order of the Court of Appeals. Rule 3 (b), FRAP.
Sub. (4). The provision of former s. 817.34 that an appeal from a final judgment brings before the court for review all of the prior orders entered in the case is continued. This does not apply, however, to any prior final order or judgment which could have been appealed as of right under s. 808.03 (1). Thus a judgment dismissing a codefendant from a case must be appealed immediately and cannot be reviewed when judgment is rendered on the plaintiff's claim against the other defendants. Nonfinal orders and judgments that are appealed and ruled upon by the Court of Appeals are, of course, not subject to further review upon appeal of the final judgment. This section is also limited to those orders made in favor of the named respondents to prevent the possibility of the court reviewing an order in favor of a person not a party to the appeal.
A change is made in prior law in that an interlocutory judgment, Rule 806.01 (2), which previously must have been appealed within the statutory period from the entry of the interlocutory judgment, Richter v. Standard Manufacturing Co., 224 Wis. 121, 271 N.W. 14 (1937), is now reviewable by the Court of Appeals upon an appeal of the final judgment. The objective is to have only one appeal in each case, absent unusual circumstances which would justify an appeal from a nonfinal order under s. 808.03 (2). [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1981:
To facilitate the efficient administration of appeals by the court of appeals, sub. (1) (a) is amended to require that the notice of appeal state whether the appeal is in one of the types of cases specified in s. 752.31 (2). [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001:
Former sub. (1) (a) has been repealed and recreated as subs. (1) (a) to (d). Subsection 1 (d) clarifies when a docketing statement must be filed. Former sub. (1) (b) has been repealed and recreated as sub. (1) (e). Subsection (1) (f) codifies existing law. See
Northridge Bank v. Community Eye Care Ctr.
,
94
Wis. 2d 201
, 203,
287 N.W.2d 810
, 811 (1980);
Carrington v. St. Paul Fire & Marine Ins. Co
.,
169 Wis. 2d 211
, 217 n.2,
485 N.W.2d 267
, 269 n.2 (1992). Please see s. 809.32 for special requirements for a Notice of Appeal in a No-Merit Report appeal. [Re Order No. 00-02 effective July 1, 2001]?
Judicial Council Note, 2002:
See also related changes in ss.
809.40 (3) and 809.50 (3). Prior to
2001 WI 39
, effective 7/1/01, s. 809.10 (1) provided that docketing statements were not required in "criminal cases or in cases in which a party appears pro se." State's appeals in criminal cases were inadvertently omitted from the list of statutory references that replaced "criminal cases" in the prior statute. Subsection (1) (d) is amended to clarify that docketing statements are not required in state's appeals in criminal cases. The amendment also clarifies that docketing statements are not required in permissive appeals in criminal cases, but are required in other permissive appeals. [Re Order No. 02-01 effective January 1, 2003]
When an appeal is pending, matters not directly concerned with the appeal but related to the case are still properly within the trial court's jurisdiction. In Matter of Trust Estate of Schaefer,
91 Wis. 2d 360
,
283 N.W.2d 410
(Ct. App. 1979).
The filing date stamped on the notice of appeal is not conclusive as to the date of filing. Boston Old Colony Insurance Co. v. International Rectifier Corp.
91 Wis. 2d 813
,
284 N.W.2d 93
(1979).
A respondent was allowed to challenge a trial court order denying a motion for summary judgment despite the failure to file a notice of cross-appeal. Auric v. Continental Casualty Co.
111 Wis. 2d 507
,
331 N.W.2d 325
(1983).
Service of the notice of appeal on opposing parties is not necessary to confer jurisdiction on the court of appeals. Rhyner v. Sauk County,
118 Wis. 2d 324
,
348 N.W.2d 588
(Ct. App. 1984).
Failure to submit the docketing fee within the time specified for filing a notice of appeal does not deprive the court of appeals of jurisdiction. The notice of appeal, not the docketing fee, vests the court with jurisdiction. Douglas v. Dewey,
147 Wis. 2d 328
,
433 N.W.2d 243
(1989).
The federal prohibition against stacking cross-appeals is not applicable under sub. (2) (b). The time limits under sub. (1) (b) are jurisdictional and may not be extended. Estate of Donnell v. Milwaukee,
160 Wis. 2d 529
,
466 N.W.2d 670
(Ct. App. 1991).
A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice is constitutional. Jadair Inc. v. United States Fire Insurance Co.
209 Wis. 2d 187
,
561 N.W.2d 718
(1997),
95-1946
.
Section 799.06 (2) authorizes a non-lawyer employee to represent a party to a small claims action at the appellate, as well as trial court, level and is an exception to the rule stated in
Jadair
. Holz v. Busy Bees Contracting, Inc.
223 Wis. 2d 598
,
589 N.W.2d 633
(Ct. App. 1998),
98-1076
.
The failure to sign a notice of appeal can be corrected and does not compel immediate dismissal. State v. Seay,
2002 WI App 37
,
250 Wis. 2d 761
,
641 N.W.2d 437
,
00-3490
.
Section 753.016 (1) and (2) provide that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. In Milwaukee County "the clerk of the trial court" under sub. (1) (a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court. Kelley v. State,
2003 WI App 81
,
261 Wis. 2d 803
,
661 N.W.2d 854
,
02-1495
.
Appeal of a judgment, the date of which was specified in the notice of appeal, included an appeal of an order for costs entered after that date. A judgment is perfected by the taxation of costs and the insertion of the amount into the judgment so that the order of costs becomes part of the judgment subject to appeal. DeWitt Ross & Stevens v. Galaxy Gaming and Racing,
2003 WI App 190
,
267 Wis. 2d 233
,
670 N.W.2d 74
,
02-0359
.
Affirmed on other grounds.
2004 WI 92
,
273 Wis. 2d 577
,
682 N.W.2d 839
,
02-0359
.
In order to confer jurisdiction on the court of appeals, a notice of appeal filed by counsel must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction. Brown v. MR Group, LLC
2004 WI App 121
,
274 Wis. 2d 804
,
683 N.W.2d 804
,
03-2309
.
The plaintiffs in this case were not "respondents" under sub. (4) because they were not named in the notice of appeal, and thus were not "respondents" adverse to the appellants. The appellants could not name the plaintiffs as respondents in the notice of appeal because the appellants were not aggrieved by any final order entered against the appellants and in favor of the plaintiffs. The appellants could not evade the bar to appealing non-final-orders as of right by the expedient of appealing final orders against those named in the notice of appeal in order to get review of non-final orders and rulings favorable to parties who were still active in the litigation. Dixon v. Hnilicka Company, Inc.
2011 WI App 46
,
332 Wis. 2d 357
,
798 N.W.2d 264
,
09-1953
.
Applying well-established principles of law that apply equally to the United States government when it is a party, a decision not to litigate any of the issues involved in the circuit court precludes the United States from pursuing relief in the court of appeals. Nickel v. United States of America,
2012 WI 22
,
339 Wis. 2d 48
,
810 N.W.2d 450
,
11-0987
.
Mechanics of making an appeal in the court of appeals. Felsenthal, WBB October 1981.
Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.
Changing standards of review. Leavell. WBB May 1987.
