2017 Wisconsin Statutes & Annotations
Chapter 799. Procedure in small claims actions.
799.45 Execution of writ of restitution; disposal of personal property.
799.45 Execution of writ of restitution; disposal of personal property.
(1) When executed. Upon delivery of a writ of restitution to the sheriff, and after payment to the sheriff of the fee required by s. 814.70 (8), the sheriff shall execute the writ. If the plaintiff, or the plaintiff's attorney or agent, does not notify the sheriff under sub. (3m) that the plaintiff or his or her agent will remove and store or dispose of the property, the sheriff may require that prior to the execution of any writ of restitution the plaintiff deposit a reasonable sum representing the probable cost of removing the defendant's property chargeable to the plaintiff under s. 814.70 (8) and (10) and of the services of deputies under s. 814.70 (8). In case of dispute as to the amount of the required deposit, the amount of that deposit shall be determined by the court under s. 814.70 (10).
(2) How executed; duties of sheriff. In executing the writ of restitution the sheriff shall:
(a) Remove from the premises described in the writ the person of the defendant and all other persons found upon the premises claiming under the defendant, using such reasonable force as is necessary.
(b) If the plaintiff or his or her agent does not notify the sheriff under sub. (3m) that the plaintiff or his or her agent will remove and store or dispose of the personal property, remove or supervise removal from the premises described in the writ, using such reasonable force as may be necessary, all personal property found in the premises not the property of the plaintiff.
(bg) If requested by the plaintiff or his or her agent, assist the plaintiff or his or her agent in the removal, under sub. (3m), of all personal property found in the premises described in the writ, not the property of the plaintiff, using such reasonable force as may be necessary.
(c) Exercise ordinary care in the removal or supervision of removal of all persons from the premises, in the removal or supervision of removal of personal property under par. (b), and in the handling and storage of all property removed from the premises under par. (b).
(3) Manner of removal and disposition of removed goods by sheriff.
(a) In accomplishing the removal of property from the premises described in the writ, the sheriff is authorized to engage the services of a mover or trucker unless the plaintiff notifies the sheriff under sub. (3m) that the plaintiff will remove and store or dispose of the property.
(b) Except as provided in par. (c), the property removed from such premises under this subsection shall be taken to some place of safekeeping within the county selected by the sheriff. Within 3 days of the removal of the goods, the sheriff shall mail a notice to the defendant as specified in sub. (4) stating the place where the goods are kept and shall deliver to the defendant any receipt or other document required to obtain possession of the goods. Warehouse or other similar receipts issued with respect to goods stored by the sheriff under this subsection shall be taken in the name of the defendant. All expenses incurred for storage and other like charges after delivery by the sheriff to a place of safekeeping shall be the responsibility of the defendant. Any person accepting goods from the sheriff for storage under this subsection shall have all of the rights and remedies accorded by law against the defendant personally and against the property stored for the collection of such charges, including the lien of a warehouse under s. 407.209. Risk of damages to or loss of such property shall be borne by the defendant after delivery by the sheriff to the place of safekeeping.
(c) When, in the exercise of ordinary care, the sheriff determines that property to be removed from premises described in the writ is without monetary value, the sheriff may deliver or cause the same to be delivered to some appropriate place established for the collection, storage, and disposal of refuse. In such case the sheriff shall notify the defendant as specified in sub. (4) of the place to which the goods have been delivered within 3 days of the removal of the goods. The exercise of ordinary care by the sheriff under this subsection does not include searching apparently valueless property for hidden or secreted articles of value.
(d) All of the rights and duties of the sheriff under this section may be exercised by or delegated to any of the deputies.
(3m) Alternative disposition of property by plaintiff. When delivering a writ of restitution to the sheriff, as a complete alternative to the procedure for disposition of the property under sub. (3), the plaintiff or his or her attorney or agent may notify the sheriff that the plaintiff or the plaintiff's agent will be responsible for the removal and storage or disposal of the property that is found in the premises described in the writ and that does not belong to the plaintiff in accordance with s. 704.05 (5). If the sheriff is notified that the plaintiff or the plaintiff's agent will be responsible for the removal and storage or disposal of the property under this subsection, the sheriff shall, if requested by the plaintiff or his or her agent, supervise the removal and handling of the property by the plaintiff or the plaintiff's agent.
(4) Manner of giving notice to defendant. All notices required by sub. (3) to be given to the defendant by the sheriff shall be in writing and shall be personally served upon the defendant or mailed to the defendant at the last-known address, even if such address be the premises which are the subject of the eviction action.
(5) Return of writ; taxation of additional costs.
(a) Within 10 days of the receipt of the writ, the sheriff shall execute the writ and perform all of the duties required by this section and return the same to the court with the sheriff's statement of the expenses and charges incurred in the execution of the writ and paid by the plaintiff.
(b) Upon receipt of the returned writ and statement from the sheriff, the clerk shall tax and insert in the judgment as prescribed by s. 799.25 the additional costs incurred by the plaintiff.
A sheriff was liable in his official capacity for actions of a deputy executing an untimely writ of restitution. Wolf-Lillie v. Sonquist, 699 F.2d 864 (1983).
Warehousemen's liens may constitutionally be enforced against tenants dispossessed under s. 299.45, 1977 stats. [now s. 799.45]. Wegwart v. Eagle Movers, Inc. 441 F. Supp. 872.
