2012 Wisconsin Statutes & Annotations
801. Civil procedure — commencement of action and venue.
801.09 Summons, contents of.
801.09 Summons, contents of. The summons shall contain:
(1) The title of the cause, specifying the name of the court in which the action is brought, the name of the county designated by the plaintiff as the place of trial, the standardized description of the case classification type and associated code number as approved by the director of state courts and the names and addresses of the parties to the action, plaintiff and defendant.
(2) A direction to the defendant summoning and requiring defendant to serve upon the plaintiff's attorney, whose address shall be stated in the summons, either an answer to the complaint if a copy of the complaint is served with the summons or a demand for a copy of the complaint. The summons shall further direct the defendant to serve the answer or demand for a copy of the complaint within the following periods:
(a)
1. Except as provided in subds. 2. and 3., within 20 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.
2. If the defendant is the state or an officer, agent, employee, or agency of the state, as to that defendant, within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant.
3. Within 45 days, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant, if any of the following applies:
a. A defendant in the action is an insurance company.
b. Any cause of action raised in the complaint is founded in tort.
(b) Within 40 days after a date stated in the summons, exclusive of such date, if no such personal or substituted personal service has been made, and service is made by publication. The date so stated in the summons shall be the date of the first required publication.
(3) A notice that in case of failure to serve an answer or demand for a copy of the complaint within the time fixed by sub. (2), judgment will be rendered against the defendant according to the demand of the complaint. The summons shall be subscribed with the handwritten signature of the plaintiff or attorney with the addition of the post-office address at which papers in the action may be served on the plaintiff by mail, plaintiff's or attorney's telephone number, and, if by an attorney, the attorney's state bar number, if any. If the plaintiff is represented by a law firm, the summons shall contain the name and address of the firm and shall be subscribed with the handwritten signature and state bar number, if any, of one attorney who is a member or associate of such firm. When the complaint is not served with the summons and the only relief sought is the recovery of money, whether upon tort or contract, there may, at the option of the plaintiff, be added at the foot a brief note specifying the sum to be demanded by the complaint.
(4) There may be as many authenticated copies of the summons and the complaint issued to the plaintiff or counsel as are needed for the purpose of effecting service on the defendant. Authentication shall be accomplished by the clerk's placing a filing stamp indicating the case number on each copy of the summons and the complaint.
History: Sup. Ct. Order, 67 Wis. 2d 585, 598 (1975); Sup. Ct. Order, 67 Wis. 2d viii; 1975 c. 218; Sup. Ct. Order, 112 Wis. 2d xi; Sup. Ct. Order, 171 Wis. 2d xxv; 1993 a. 365, 486; 1997 a. 133, 187; 2001 a. 16; 2005 a. 442.
Cross-reference: See s. 802.06 (1) for provision giving the state 45 days to serve an answer.
When a defective summons does not prejudice the defendant, non-compliance with sub. (2) (a) is not jurisdictional error. Canadian Pacific Ltd. v. Omark-Prentice Hydraulics, 86 Wis. 2d 369, 272 N.W.2d 407 (Ct. App. 1978).
Failure to name a party in the summons means that the court has no authority over that party regarding the case. Prejudice need not be shown. Bulik v. Arrow Realty, Inc., 148 Wis. 2d 441, 434 N.W.2d 853 (Ct. App. 1988).
An unsigned summons served with a signed complaint is a technical defect, which in the absence of prejudice does not deny the trial court personal jurisdiction. Gaddis v. LaCrosse Products, Inc. 198 Wis. 2d 396, 542 N.W.2d 454 (1996), 94-2121.
A stamped reproduction of a signature does not satisfy sub. (3), and correcting the signature a year after receiving notice of the defect is not timely under s. 802.05 (1) (a). The error must be promptly corrected or else the certification statute and the protection it was intended to afford is rendered meaningless. Novak v. Phillips, 2001 WI App 156, 246 Wis. 2d 673, 631 N.W.2d 635, 00-2416. See also Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d N.W.2d 715, 00-2157, reversing the holding of Novak that the error was technical and not fundamental.
A summons and complaint signed by an attorney not licensed in the state contained a fundamental defect that deprived the circuit court of jurisdiction even though the signature was made on behalf and at the direction of a licensed attorney. Schaefer v. Riegelman, 2002 WI 18, 250 Wis. 2d 494, 639 N.W.2d N.W.2d 715, 00-2157.
Default judgment entered immediately after the trial court permitted amendment of the pleadings to correct the defendant's name was void because the original summons and complaint named the wrong corporate entity, the defendant's parent. The general rule is that if a misnomer or misdescription does not leave in doubt the identity of the party intended to be sued, or, even when there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit, and a judgment taken by default is enforceable. However, if the amendment is to bring in a new party, it will be refused. Johnson v. Cintas Corporation, 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549.
A wholly owned subsidiary of a corporation is a legal entity that exists independently of the parent. The failure to name the subsidiary in a summons and complaint when the subsidiary was the correct party constituted a fundamental defect that precluded the circuit court of personal jurisdiction over the subsidiary, regardless of whether or not the defect prejudiced the subsidiary. It is irrelevant that the summons and complaint was served upon the registered agent for the subsidiary and the subsidiary might have had knowledge that it was meant to be a party. Johnson v. Cintas Corporation, 2011 WI App 5, 331 Wis. 2d 51, 794 N.W.2d 475, 09-2549.
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