SMALL CLAIMS GUIDE
TABLE OF CONTENTS
- A. Is Small Claims Court Right For You? 3
- B. Have You Been Sued In Small Claims Court?
- C. Try To Settle First 3
- D. Is A Lawyer Necessary? 4
- E. Types Of Small Claims Cases 4
II. STARTING YOUR SUIT
- A. Where To File Your Case 4
- B. The Summons And Complaint 4
- C. Filling In The Forms 5
- D. Serving The Papers 5
- E. Published Service 6
III. FIRST HEARING
- A. The Return Date 6
- B. Attending The First Hearing 6
- C. Default Judgment 7
IV. THE TRIAL
- A. Jury Trial vs. Court Trial 7
- B. Preparing For Trial 8
- C. Conduct Of Witnesses 9
- D. Cross Examination 9
- E. Stipulated Dismissal 9
- A. Reimbursement Of Costs 10
- B. Financial Disclosures By Judgment Debtors
- C. Docketing The Judgment 11
- D. Appeals 11
- E. Reopening Default Judgments 11
- A. What Is Garnishment? 12
- B. Garnishment of Accounts 12
- C. Garnishment of Earnings 13
Appendix A Legal Assistance
Appendix B Fees 16
Appendix C Glossary Of Terms
A. Is Small Claims Court
Right For You?
Does someone owe you money? Has your landlord
unjustifiably failed to return your security deposit? Did
you order merchandise that the retailer has failed to
deliver? Has a merchant failed to comply with the terms
of a guarantee?
If so, you should consider the possibility of bringing
a lawsuit in small claims court. You may not need a
lawyer, and the rules are simpler than in most court
proceedings. Any individual and any corporation doing
business in Wisconsin can sue or be sued in small claims
B. Have You Been Sued in
Small Claims Court?
Perhaps you are reading this because you received a
summons informing you that someone is suing you in small
claims court. That person is called the
"plaintiff" on the summons, and you are the
The summons tells you when and where you should go if
you want to contest the case. It also tells you the type
of case it is and what the plaintiff claims you owe him
or her. If the plaintiff has an attorney, the summons
tells you the attorney's name and address.
Attached to the summons is a "complaint"
telling why the plaintiff thinks you owe him or her
money, your property should be repossessed, or you should
be evicted, as the case may be. Is everything stated in
the complaint true? If not, and you do not agree that the
plaintiff should get what he claims in the last paragraph
of the complaint, you may wish to appear and contest the
case. Even if the complaint is true, you may still want
to contest the case if you think there are other facts
the court should know about. If there is any reason why
the plaintiff should not get what he claims, you may wish
to contest the case.
If you decide not to contest the case, it is not
necessary to go to court. If you do not appear in court,
the plaintiff will probably obtain a judgment against
you. If you do want to contest the case, make sure you
show up in court at the time shown by the summons.
In some counties, you can contest the case without
going to court until later. The summons will tell you if
that is allowed in the county where you are being sued.
Usually, you must send the court an "answer" to
the complaint, showing the plaintiff's name and your
name, as they appear on the summons, and the case number.
Your answer should state all the things in the complaint
which you deny are true, and all the things the judge
should know before deciding whether the plaintiff should
get what he or she is asking for. After your answer is
received, the court will schedule the case for a hearing
and notify you of its time and place.
C. Try To Settle First
To avoid the time and expense of going to court, try
to settle the matter first. Contact the other party,
discuss the situation, and try to solve the problem by an
agreement you can both accept. Even after your small
claims suit is filed, you may still engage in settlement
negotiations with the opposing party. Don't be reluctant
to compromise; even in large civil lawsuits, more than
90% are settled prior to trial. If you are unsure of your
legal rights, you may wish to contact an attorney for
advice, even though you do not intend to pay him or her
to represent you at trial. For a minimal fee, a lawyer
may be able to advise you whether you have a valid claim
or defense, and of the types of evidence you will need to
prove it. Sometimes asking your attorney to mail a letter
to the other party requesting settlement will be
effective in avoiding the need to go to court.
D. Is A Lawyer
In small claims court, you can handle your personal or
business legal matters without an attorney. The court may
require the appointment of a guardian if you are under 18
years of age. However, any party may hire a lawyer to
represent him or her in small claims court. If the other
party has a lawyer, your chances of winning may be better
if you have one, too.
If you cannot afford an attorney, there are
organizations listed in Appendix A that may be able to
assist you. You might also read Chapter 799 of the
Wisconsin Statutes, available in most libraries, which
outlines the small claims court procedure.
E. Types Of Small Claims
Small claims court may be used only for certain types
of cases. These are as follows:
* Lawsuits (such as breach of contract, property
damage or personal injury) when the amount claimed is
$5,000 or less;
* All evictions, regardless of the amount of rent
* Actions for the return of earnest money tendered
pursuant to a contract for purchase of real property,
regardless of the amount claimed;
* Replevins (repossessions of property) if the value
of the property does not exceed $5,000 or if the property
is consumer goods leased or purchased on credit from a
* Actions for the confirmation, vacation, modification
or correction of an arbitration award where arbitration
was in settlement of a controversy arising out of a
transaction for the purchase of real property, regardless
of the amount of that award;
* Garnishments (to enforce judgments from funds owed
to the debtor) when the amount owed is $5,000 or less.
* Property Taxes (suits by municipalities to recover
delinquent personal property taxes).
II. STARTING YOUR SUIT
A. Where To File Your
For most claims, the proper county to file suit is:
(1) Where the claim arose;
(2) Where the property which is the subject of the
claim, or part of it, is located; or
(3) Where the defendant resides or does substantial
A consumer transaction is a purchase or lease of
goods, property or services, or loan of money or credit,
for personal, family, household or agricultural purposes.
If your claim arises out of a consumer transaction, the
suit may be filed in the county:
(1) Where the consumer resides;
(2) Where the consumer made the purchase; or
(3) If it was a credit transaction, where the
collateral (property securing the transaction) is
B. The Summons And
If you have decided to use small claims court, go to
the courthouse of the proper county and tell the clerk
that you wish to file a small claims suit. The clerk has
the forms you will need (summons, complaint and perhaps
an information sheet). The summons tells the defendant
(the party you are suing) when to be in court to answer
your claim, while the complaint states what you are suing
for and why. (See Appendix D for examples).
The clerks of small claims court cannot give you legal
advice, or answer questions requiring a knowledge of the
law. The clerks must refer you to your own common sense
or suggest you see an attorney if you have legal
Unless you are indigent, you will have to pay the
clerk a fee to file the summons and complaint. This fee
is set by state law and is listed in Appendix B as the
"Small Claims Filing Fee." In some counties,
the fee is paid when you pick up your forms. This and
certain other fees may be charged against the other party
if you win your case.
C. Filling In The Forms
As the person starting the lawsuit, you are the
plaintiff. Print or type your name and address in the
space marked PLAINTIFF. Next, type or print the name and
address of the person or company you are suing in the
space marked DEFENDANT. It is important that the name and
address of the party you are suing is correct. If the
papers can't be delivered to the defendant, you might
have to start over and pay additional fees.
The next part of the summons and complaint you fill in
is the PLAINTIFF'S DEMAND. Check one or more of the four
boxes labeled MONEY, EVICTION, RETURN OF PROPERTY, and
CONFIRMATION, VACATION, MODIFICATION OR CORRECTION OF
ARBITRATION AWARD. On the line next to MONEY, insert the
amount you request as damages. Interest may normally be
charged at 5% from the date the amount was due until the
date the court awards judgment and 12% thereafter until
the amount is paid, unless there is a contract which
specifically states a different rate of interest. In
estimating your damages from an automobile accident,
remember that the legal measure of damages is not always
the same as the cost of repair. Your legal damages are
determined by taking the value of your vehicle before the
collision and subtracting its value immediately after.
In the next section of the plaintiff's demand, labeled
"Brief statement of dates and facts," simply
write down in your own words what happened. Explain why
you are suing the defendant. For example, if you are
suing to make the defendant pay you money because of an
auto accident, write the facts surrounding the accident,
and why it was the defendant's fault. If the defendant
was violating a traffic law, or not exercising reasonable
care, write that he or she caused the accident
"negligently." If there is not enough room in
this space, check the box and add as many additional
pages as you need.
After you have completed your brief statement of dates
and facts, sign the complaint and fill in the date.
After the summons and complaint is served you will
return it to the clerk, your case will be filed and given
a number which you should always use in asking about it.
If you ask the clerk for information about your case
without giving the correct case number, you may be
required to pay a search fee (listed in Appendix B) to
get the information you want.
D. Serving The Papers
Once the summons and complaint have been filled out,
they must be "served on" (delivered to) the
defendant. The defendant must be "personally"
served, if you are suing a corporation and want to be
sure that the papers are delivered to the correct person,
you should have the sheriff or a private process server
serve the papers. You cannot serve the papers yourself.
Give the papers to the sheriff of the county in which
the defendant lives, or a process server, and pay the
fee. The fee for sheriff service is listed in Appendix B.
The sheriff or process server will go to the
defendant's address as stated on the summons to serve the
papers. The sheriff or process server then signs a
certificate telling when the summons and complaint were
served and either sends the originals back to the court
or to you. If returned to you, file the papers with the
clerk of courts at least 48 hours before your court date.
If the sheriff or process server can't find the
defendant, he or she may call you for information as to
where the defendant works or other places he or she might
be found. If the defendant can't be found after several
tries, the sheriff or process server can serve a family
member over 14 years old at the defendant's address. If
that can't be done at least eight days (excluding
weekends and holidays) before the initial court date,
your return date must be changed.
Although the sheriff is usually the best person to
serve your papers personally, they can be served by any
adult who isn't a party to the lawsuit. You cannot serve
your own papers. Service must be made at least eight days
prior to the initial appearance (five days for an
eviction), excluding weekends and holidays. The person
who serves the papers must:
(1) Sign the summons and write on it the time, place
and manner of service, along with the name of the person
(2) Complete an "affidavit of service," a
form which can be purchased at a legal stationery store;
(3) Give a copy to the plaintiff, and file the
original affidavit, summons and complaint with the court
immediately after service.
E. Published Service
If, after several tries, it is impossible to make
personal service, or if the mailed papers are returned
unopened to the clerk, service may be made by publishing
a notice one time in a local newspaper and by mailing the
summons and complaint to the defendant's last-known
address. The notice should be published in the legal
notice section of any newspaper likely to give notice to
the person affected. Publication of this notice must be
at least eight days prior to the initial appearance date.
Appendix D shows a form notice which may be somewhat less
expensive to publish than the actual summons itself, but
either may be published.
III. FIRST HEARING
A. The Return Date
When you filed your case, it was scheduled for hearing
at a certain date and hour (sometimes known as the
"return date"). In most counties, plaintiff and
defendant must both appear in court then and the
defendant will be asked to answer the complaint. In some
counties, neither party is required to appear. Instead, a
defendant wishing to contest the case must answer the
complaint in writing before the return date. In these
counties, if the defendant answers on time, the plaintiff
will be sent a copy of the defendant's answer and notice
of the time of the first court hearing.
B. Attending The First
In those counties which require both parties to appear
on the return date, you will go before a judge, court
commissioner or clerk. Although the summons states that
it is not necessary to bring witnesses at this time, it
may help to bring along any evidence, including papers
and documents, that may prove your claim. For example, if
the suit involves an auto accident, you could obtain a
copy of the police accident report from the law
enforcement agency that investigated it. It is a good
idea to arrive early. If you are not in court on time,
you may lose the case and have to start over. In counties
with many courtrooms, you may need to check a calendar of
that day's court proceedings to determine in which
courtroom your case will be called.
The clerk will call out the name of the cases one by
one as they are listed on the calendar. When you hear
your case called, go to the front of the courtroom and
identify yourself. If the other party is present, he or
she will also approach at the same time. The judge, court
commissioner or clerk will ask the defendant if he or she
admits to the plaintiff's claim. If the defendant admits
that he or she owes the money and does not have any other
defense, the plaintiff is entitled to judgment. If the
defendant does not admit the claim, the defendant will be
given 2 weeks to file an answer in writing with the court
and with the plaintiff.
The judge, court commissioner or clerk will check the
legal papers and decide whether any key facts are in
dispute. The judge or commissioner might discuss possible
settlement with you. If both parties agree to a
settlement in front of the judge or commissioner, it
becomes a binding agreement.
If both parties appear but cannot come to an
agreement, the judge or commissioner can hold a hearing
and make a decision immediately, if there is time
available and both parties agree. Often, however, the
matter is set for hearing at a future time. Except in
evictions, a party who appears at the return date will be
allowed to have the hearing postponed at least seven days
upon request. In eviction cases, a delay is not permitted
unless both parties agree or good cause is shown.
If both parties appear and cannot reach agreement in
an eviction, replevin or garnishment case, the matter
will be scheduled for a hearing before a judge as soon as
C. Default Judgment
If the defendant fails to come to court on the return
date (or to answer on time in courts which allow that
instead), the judge or court commissioner will often
enter a "default judgment" against the
defendant. For some types of cases, the complaint or
plaintiff's sworn testimony at the return date hearing is
enough proof for such a judgment. In some counties, for
some kinds of cases (especially damage and injury claims
such as auto accidents) you might be asked to return to
court and offer evidence to prove your claim at a later
time. The clerk will help schedule that for your
In some counties, the clerk will require you to sign
an affidavit that to the best of your knowledge the
defendant is not in the military service before filing
the default judgment. If you know the defendant is
presently in the military, your action may not be able to
go to judgment.
If the plaintiff fails to appear timely on the return
date (in those counties where required to do so), the
lawsuit will usually be dismissed by the court.
A. Jury Trial vs. Court
A trial "to the court" is a trial before a
judge. There is no extra fee for a court trial.
Any party may file a written demand for a jury trial
if a demand for a trial is filed. Any party requesting a
jury trial must pay fees listed in Appendix B as
"Jury Demand Fees."
If the party demanding the trial does not demand a
jury trial, any other party may file such a demand with
the court (mailing copies to all other parties) within 15
days from the date of mailing of the demand for trial. If
no party timely demands a trial by jury, the right to
trial by jury is waived.
Demanding a jury trial brings your case under the
formal rules of evidence and procedure. Unless you have
an attorney, demanding a jury trial for a small claims
case is usually unwise.
B. Preparing For Trial
After a demand for trial has been made, the court will
send the parties notice of the date, time, courtroom and
judge for the trial. Note the date, for this will be your
only notice. On the date of trial be sure to bring any
necessary witnesses and documents to court.
Friends and relatives will probably appear on your
behalf voluntarily, but businesspeople, police officers
and others who have no interest in your matter usually
won't. If you need their testimony to prove a key fact
which the other party disputes, you can force them to
come to court by the use of a "subpoena." A
subpoena is a court order compelling a witness to be
present at the time a case is tried. Subpoenas can be
issued for persons in Wisconsin. Subpoena forms can be
obtained without charge from the clerk's office. You will
need an original and one copy of the subpoena for each
person you want to come to court.
You may also use a subpoena to get documents, books,
records or other evidence in someone else's possession
brought to court. A court order requiring a witness to
bring those documents or records is called a
"subpoena duces tecum." It is filled out
exactly as a regular subpoena except that you must also
describe what items you want the person to bring with him
After obtaining the subpoena forms, you will have to
fill them out. Insert your case number, the name and
address of the person to be subpoenaed, the date of the
trial, the time and courtroom number, the judge who will
preside, your name and that of the defendant. The names
and addresses of the parties of the case should also be
filled in on the reverse side of the subpoena.
After the subpoena is filled out in duplicate, have it
signed by the clerk, and take it to the sheriff's office
for service on the witness in the same manner as the
summons and complaint.
Although a subpoena can be served at any time prior to
the trial date, you should take it to the sheriff's
office at least one week before the trial. You must pay
the sheriff's service fee, witness fee, and witness's
mileage fee. The sheriff will pay the witness and mileage
fees to the witness when the subpoena is served. If these
fees are not paid at the time the subpoena is served, the
witness does not have to come to court. If the sheriff is
able to serve the subpoena, proof of that will
automatically be filed with the clerk. If the sheriff is
unable to serve it, he will return it to you. Sometimes
you can find out whether your subpoena has been served by
calling the sheriff's office. Keep the receipt you get
when paying the sheriff's fee for serving the subpoena;
it contains the "transaction number," which you
might need if the papers are misplaced.
The judge may conduct a pretrial conference and
encourage you to settle before the trial begins. Settle
if that is in your best interest.
If no settlement occurs, the trial will begin. The
judge will decide the case only on the evidence and
arguments presented at this trial, which will be taken
down by a court reporter. You and all your witnesses
should be in court promptly at the time assigned by the
judge, and you should have any proof you feel is
necessary to win your case.
The plaintiff is almost always asked to present his or
her case first. After swearing or affirming to testify
truthfully, tell your story, giving clear and concise
details to support your claim. Keep to the key facts and
try not to digress into side issues unless a question
requires it. If you have written evidence or documents to
support your claim, show them to the judge and the
defendant, explain what they are, and from where you
obtained them. Bringing several copies of the documents
to hand out to the other parties is helpful but not
required. If any physical evidence (maps, invoices,
letters, canceled checks, etc.) is to be presented, it
should be given to the clerk to be marked as an exhibit
and given a number. Before completing your case, be sure
to request the court to receive your exhibits into
At the conclusion of the plaintiff's testimony, the
judge may question him or her. After that, the defendant
has the right to cross-examine the plaintiff. When that
is completed, the plaintiff steps down from the witness
stand and calls any other witnesses he or she has. After
each witness is sworn, ask questions clarifying the facts
on which your claim is based. The defendant has the right
to cross-examine the plaintiff's witnesses. The judge may
also question them.
The defendant follows the plaintiff and presents his
or her case in the same way. The defendant may call
witnesses to support his or her denials of the
plaintiff's claims and whatever additional defenses he or
she may have. The plaintiff may question the defendant
and the defendant's witnesses.
C. Conduct Of Witnesses
Witnesses should speak clearly and loudly enough for
all to hear. To speed up the hearing, the witnesses may
tell their stories in their own words without the usual
question-and-answer procedure of regular court testimony.
However, testimony should be concise and to the point,
not rambling. If necessary, a witness may use a
blackboard or chart to demonstrate or illustrate a point.
Try not to speak when another is speaking so that all
comments may be heard by the court reporter.
D. Cross Examination
When a party or witness has completed testifying, the
opposing party may cross-examine him or her.
Cross-examination is not limited to things the witness
said in direct testimony. The only limitation on
cross-examination is that the questions asked be
relevant. The cross examiner must not attempt to put
words in the mouth of the witness or make statements at
this point, only ask questions. Cross-examination is not
an opportunity for debate. The four basic purposes of
(1) To clear up what the witness meant;
(2) To find out whether the witness is biased;
(3) To test the witness's memory or recall of events;
(4) To test the accuracy of the witness's perceptions
(that is, how well he or she saw or heard the events he
or she described).
E. Stipulated Dismissal
If the judge decides the case in favor of the
plaintiff, he or she will be awarded a
"judgment," i.e., a formal document signed by
the judge and "entered" (filed) in court,
stating that the defendant owes the plaintiff money, must
return property, or vacate the premises. After the
judgment is filed in court, there are various ways the
plaintiff can enforce it against the defendant.
Some defendants are more likely to abide by the
court's decision if the plaintiff agrees not to have the
judgment entered. Often that is because the judgment may
make it harder for the defendant to obtain a loan to pay
the plaintiff and other creditors. In this situation, the
parties sometimes agree to a "stipulated
dismissal." If the parties agree that the defendant
will pay the amount determined by the court by a certain
date (or in certain installment payments), they can ask
the judge for a stipulated (agreed) dismissal. The judge
will dismiss the lawsuit without entering a judgment
against the defendant. However, if the defendant fails to
pay as required by the agreement, the plaintiff can file
a sworn statement in the court and have the stipulated
dismissal withdrawn and a judgment entered for the amount
the defendant still owes without any more hearings.
Stipulated dismissals are allowed by s. 799.24(3) of the
Wisconsin Statutes. You need not enter into such an
agreement. If you are the plaintiff, do so only if you
think the defendant will abide by it.
V. POST-TRIAL CONSIDERATIONS
A. Reimbursement Of
If you win your suit, ask the court to include court
costs and fees you incurred in the lawsuit as part of the
judgment. Not all of your expenses can be passed on to
the losing party. Lost wages, parking and transportation
expenses incurred in coming to court are some of the
expenses which the court cannot order as costs. However,
the court will require reimbursement of fees paid to file
the action, to have the summons and complaint mailed or
personally served, to subpoena witnesses, to demand a
jury, to compensate the garnishee in garnishment cases,
and, if an attorney appeared for you in court, an
attorney fee based on the amount of damages the court
awarded, as follows:
Amount of Judgment Attorney Fee
$1,000 - $5,000 $100
$ 500 - $ 999 $ 50
$ 200 - $ 499 $ 25
Under $ 200 $ 15
If it is not practical to determine the value of the
court's decision in your favor, the court may order the
defendant to pay you an attorney fee between $15 and
$100. If your judgment was awarded by default (because
the defendant failed to appear), the attorney fee is
one-half of that stated above. Usually, your lawyer will
charge you more than the attorney fee the defendant must
B. Financial Disclosures
By Judgment Debtors
Even though the court decides in your favor, the
losing party still might not pay you the money due or
return the property as ordered by the judgment. The court
will not force the defendant to do so unless you take
further legal action to get what is owed you. This is
called "executing" the judgment. In order to do
so, you need to know how much money or property the
defendant has or earns. For this reason, if the judgment
requires the defendant to pay you money damages, the
court will also order the judgment debtor to send you a
statement disclosing his name, address, employers and
their addresses, real property he or she owns, financial
institutions in which he or she has funds on deposit, and
other information required by form schedules which the
court will give or send to the debtor. See Form SC-506,
Order for Financial Disclosure and Financial Disclosure
of Assets, Appendix D.
The debtor need not file this information in court; he
or she must mail it directly to the successful party
within 15 days after the judgment is filed in court,
unless within that time the judgment is paid.
The debtor must comply with this order and disclose
this information even though he or she decides to appeal
the court's decision. However, if there is an appeal, the
debtor can ask the court for an order delaying the time
when this information must be sent to the creditor. If
the judgment debtor hasn't paid the debt or sent the
creditor this information by the 15th day after the
judgment was filed in court, the creditor can start
proceedings to have the debtor held in contempt of court,
or you may commence garnishment proceedings immediately
if you already know where the debtor is employed or does
his/her banking (see Sec. VI-Garnishment). Ask the small
claims clerk for Form SC-507, "Petition and Order
for Hearing on Contempt", available free of charge.
After you fill it out and file it, the court will order
the other party to appear in court to explain why he or
she failed to send the proper financial disclosures. Once
the party is in court, the court will usually require the
party to complete the financial disclosure form at that
time. If the debtor fails to appear at the
order-to-show-cause hearing, the court will issue a
warrant for his or her arrest for being in contempt of
court. The Sheriff's Dept. may require that you supply
them with the date of birth of the debtor before they can
actually serve the warrant. The defendant can be placed
in jail or ordered to pay a fine for each day he or she
fails to make the required financial disclosures to you.
C. Docketing The
If the small claims court has issued a judgment in
your favor, you should have that judgment
"docketed." For a fee paid to the clerk (see
"Docketing Fee" in Appendix B), the clerk will
place the judgment on an official list, open to public
inspection, telling interested parties such as creditors
that the judgment exists. After a judgment is docketed,
it becomes a lien on any real estate owned by the debtor
in that county for ten years. If the debtor tries to sell
the property, the purchaser will usually require that the
lien be removed (by paying the plaintiff the judgment)
before taking title.
A transcript of the judgment can be obtained from the
clerk and docketed in any other county where the
defendant owns real estate, creating a lien on it, too.
Of course, if the debtor doesn't own real property (or
the plaintiff doesn't want to wait until he or she tries
to sell it), there are other legal methods to enforce the
judgment, such as garnishment, described in Section VI of
Any party dissatisfied with the judgment of the small
claims court may appeal it to the court of appeals. Since
there are no special "small claims" rules for
appeals, it is almost impossible to appeal successfully
without a lawyer's help. Therefore, this booklet will not
discuss the steps necessary to bring an appeal. The
appeal fee is listed in Appendix B.
E. Reopening Default
When the defendant fails to appear in court timely on
either the initial return date or the date of any further
proceedings, the court will probably enter a default
judgment. If there was a good reason for the defendant's
failure to appear in court, he or she may file a motion
to reopen the judgment. The small claims court may reopen
a default judgment if the motion to reopen is filed
within six months after the default judgment was entered.
If the county where the suit was filed was not proper
under the rules outlined in this booklet, a motion to
reopen the judgment may be filed up to one year after the
judgment was filed. But don't "sleep on your
rights"; the longer you wait, the less likely the
court is to grant you another hearing.
However, the court will not reopen a judgment unless
it finds that "good cause" exists for that.
Your motion must state why you think there is good cause
to reopen the judgment. Maybe you missed your court date
because you were in the hospital. To reopen the judgment,
you must file a notice of motion with the court and serve
a copy on the other party in any of the ways allowed for
service of the summons and complaint. The notice outlines
your reasons, or "good cause" for having the
judgment reopened. Contact the clerk to get a date and
time for hearing the motion. The motion must be received
by the other party at least five days, not including
Saturdays, Sundays or holidays, before the day on which
the motion is scheduled for hearing.
A default judgment might be reopened even more than
six months after the judgment was filed, but you should
see an attorney to find out if your grounds for reopening
fit Section 806.07 of the Wisconsin Statutes.
If the court grants your motion and reopens the
judgment, you may have to pay court costs to the other
party. You should ask the judge not to award costs if you
had a good reason for not being in court at the appointed
If the plaintiff misses a court date and the case is
dismissed, he or she may also file a motion to reopen.
However, since there is a chance that court costs may be
awarded to the defendant, it might be better to start
your small claims lawsuit again. See form SC-511,
Petition to Answer or to Reopen Small Claims Judgment and
Order, Appendix D.
A. What Is Garnishment?
When the court enters a judgment for money damages,
whoever must pay the money is considered a "judgment
debtor" and whoever is owed the money is considered
a "judgment creditor." To save space, this
section of the pamphlet will refer to them simply as
debtor and creditor. Just remember that garnishment
cannot be used to enforce a debt before a court has
rendered judgment on it.
If the debtor doesn't pay the judgment voluntarily,
there are several ways in which the creditor can use the
court system to collect it. See, for example,
"docketing the judgment" in Section V, C. of
this pamphlet. Another example is garnishment, in which
the court orders someone who owes money to the debtor to
pay it to the creditor instead. That person, called the
"garnishee," is often the debtor's employer, or
a bank or other financial institution where the debtor
maintains an account.
If the creditor doesn't know where the debtor works or
maintains accounts, he or she can find out through the
financial disclosures described in Section V, B of this
pamphlet. Once this information is known, the creditor
can start a new lawsuit called a garnishment, against
both the debtor and garnishee. The process of garnishing
bank or other accounts is similar to that used to obtain
the small claims judgment, while the process of
garnishing earnings is different. Both are described
B. Garnishment Of
By law, the first $1,000 on deposit in any one or more
accounts is exempt from garnishment. Furthermore, any
money in an account which is derived from government
benefits such as Social Security, Aid to Families with
Dependent Children (AFDC), Supplemental Security Income
(SSI), veterans benefits, Unemployment Compensation, or
relief funded under public assistance is also exempt from
garnishment. The garnishment of an account attaches only
money on deposit at the time the garnishee receives the
garnishment papers. Any money the debtor deposits later
will not be attached. So, garnishment will not result in
any payments to the creditor unless the papers are served
on the financial institution at a time when the debtor
has more than $1,000 in non-exempt funds on deposit.
When the amount of the judgment plus interest and
costs is $5,000 or less, the garnishment of accounts is
handled very similarly to small claims. The creditor
obtains a garnishment summons and complaint (SC-503) upon
paying to the clerk the garnishment filing fee listed in
Appendix B. After filling in the blanks on the summons
and complaint, the creditor serves them on both the
debtor and the garnishee, using one of the methods
described in Section II, D of this pamphlet. The sheriff
or process server should serve the garnishee before the
debtor, or the debtor might withdraw the funds. However,
the garnishment will fail unless the debtor is served
within 10 days after the garnishee. The creditor must
also pay a garnishee fee (listed in Appendix B) which the
process server passes on to the garnishee, or the
garnishee is not required to answer the complaint.
The summons in an account garnishment, like that in
other small claims, sets a return date when the case will
be called in court. At or prior to that time, the
garnishee must file in court and serve on the creditor
and debtor an answer, stating whether the garnishee holds
funds owed to the debtor (see CV-416). The answer may
also include any defenses such as exemptions or
procedural defects. Failure of the garnishee to answer
may result in liability for the entire judgment debt. The
debtor may also file an answer asserting exemptions or
other defenses to the garnishment, but the debtor is not
required to do so.
If the garnishee answers that money is being withheld
and no defense is raised, the creditor files with the
court and mails to the other parties a motion for a court
order directing payment of the withheld funds. If any
answer claims defenses, exemptions, or procedural
defects, the creditor must appear in court on the return
date. The matter will either be settled at that time, or
a hearing will be scheduled like that described in
sections III, A and B of this pamphlet.
C. Garnishment Of
A new law for the garnishment of earnings took effect
on April 1, 1994. Under this law, a creditor can attach
some of the earnings of the debtor for approximately 3
months after the papers are served on the garnishee
employer. If the debtor is an employee of state or local
government, the garnishment stays in effect until the
entire judgment debt is paid.
The creditor begins an earnings garnishment by filing
a notice (CV-421) with the court clerk and paying the
garnishment filing fee listed in Appendix B. The clerk
then gives the creditor two copies of the earnings
garnishment (CV-422), one to serve on the debtor and one
on the garnishee. The copy served on the garnishee is
accompanied by the garnishee fee (Appendix B). The copy
served on the debtor is accompanied by two other forms,
the exemption notice (CV-423) and the debtor's answer
(CV-424). Both copies must be served within 60 days after
the notice is filed, and the debtor must be served not
more than seven "business days," i.e.,
excluding weekends and holidays, after the garnishee and
at least three business days before the first payday
affected. Service may be made in any manner described in
Section II, D of this pamphlet, or by first class mail or
certified mail, return receipt requested. Or, the
creditor can personally deliver the papers to the
garnishee (not the debtor) if the garnishee signs a
receipt admitting service.
The garnishment served on the garnishee is a court
order directing that 20% of the debtor's aftertax
earnings be withheld from the debtor's pay for all
payperiods beginning within 13 weeks after the garnishee
receives the papers. This happens automatically, without
further hearing or order of the court, with three
(1) The debtor's earnings are already being garnished
by a different creditor. In this case, the garnishee
tells the creditor, keeps the papers and puts the
garnishment into effect when the first garnishment ends
(when the 13 weeks run out or the first judgment debt is
fully paid, whichever comes first).
(2) The debtor's earnings are assigned by court order
for child or spousal support. In this case, the garnishee
must withhold and pay the creditor only the difference
between the amount required by the support order and 25%
of the debtor's aftertax earnings. If the support order
equals or exceeds 25% of the debtor's aftertax earnings,
the creditor is paid nothing.
(3) The debtor fills in the answer form and delivers
or mails it to the garnishee. In most cases, the debtor's
answer will stop the garnishment because the debtor will
claim that his or her earnings are completely exempt.
However, the answer can also be used to correct the
garnishee's failure to consider court-ordered support
under (2), above, or arithmetic errors. The debtor can
file an answer (or a new answer) at any time before or
during the time the garnishment is in effect. An answer
prevents payments to the creditor if the garnishee
receives it before paying creditor. The garnishee must
wait at least five business days after each payday (but
no more than 10) before paying the creditor.
The exemption notice served on the debtor with the
garnishment helps the debtor determine whether to mail or
deliver an answer to the garnishee. It informs the debtor
that his or her earnings are exempt from garnishment if:
(1) The debtor's household income falls below the
federal poverty level (CV-427), or the garnishment would
cause that to happen (a worksheet, CV-426, is provided to
help the debtor calculate whether that is the case).
(2) The debtor receives, or within 6 months has
received, AFDC, relief funded under public assistance,
medical assistance, supplemental security income, food
stamps, relief funded under section 59.07 (154) or
(3) At least 25% of the debtor's aftertax earnings are
assigned by court order for support.
If the debtor mails or delivers an answer to the
garnishee, the garnishee must send a copy of it to the
creditor by the end of the third business day after
receiving the answer. The creditor may demand a court
hearing to challenge the debtor's answer (CV-425). If the
court orders that the garnishment proceed, the date the
court order is served on the garnishee is substituted for
the date of original service in calculating which
payperiods are affected by the garnishment. The court can
order costs and attorney fees if it finds that the
debtor's answer, or the creditor's challenge, was
asserted in bad faith. Court hearings can also be sought
by any party to force other parties to comply with the
earnings garnishment law, or by the debtor to seek relief
from the garnishment if the exemptions do not permit the
debtor and dependents to acquire "the necessities of
The debtor and creditor may agree in writing to extend
the garnishment for successive 13-week periods, avoiding
the need for additional court filing fees and costs for
service of papers. The garnishee is bound by any
extension agreement delivered or mailed before the end of
the last payperiod affected by the original garnishment
(or prior extension). An additional garnishee fee must be
paid with each extension agreement, however. Also, an
extension is void and the fee must be returned if another
creditor attempting to garnish the debtor's earnings
serves the papers on the garnishee before the extension
Unless otherwise provided in a labor union contract,
garnishees cannot impose fees on debtors or take adverse
actions against them because their earnings are subject
to garnishment. Regardless of any such contract,
employees cannot be discharged on account of garnishment
for judgment arising out of consumer transactions, as
defined in Section II, A of this pamphlet.
STATE BAR LAWYER HOTLINE 1-800-362-9082
Madison 608-257-4666 Milwaukee 414-274-6768
LOW INCOME LEGAL
(1) LEGAL ACTION OF WISCONSIN, INC.
a. Milwaukee County - 230 West Wells Street,
Milwaukee, Wisconsin 53203, 414-278-7722
b. Columbia, Dane, Dodge, Green, Jefferson and Rock
Counties - 31 South Mills Street, P.O. Box 9686, Madison,
Wisconsin 53715, 608-256-3304 or 1-800-362-3904
c. Kenosha, Racine and Walworth Counties - 5630 Sixth
Avenue, Kenosha, Wisconsin 53140, 414-654-0114 or
(2) LEGAL SERVICES OF NORTHEASTERN WISCONSIN, INC.
a. Brown, Calumet, Door, Kewaunee and Outagamie
Counties - 417 Pine Street, Green Bay, Wisconsin 54301,
b. Adams, Fond du Lac, Green Lake, Marquette,
Waushara, Wausau and Winnebago Counties - 404 North Main
Street, Suite 140, Oshkosh, Wisconsin 54901, 414-233-6521
c. Manitowoc, Ozaukee, Sheboygan and Washington
Counties - 901 Sheboygan St., Sheboygan, Wisconsin 53081,
(3) WESTERN WISCONSIN LEGAL SERVICES, INC.
a. Buffalo, Jackson, Juneau, La Crosse, Monroe,
Trempealeau and Vernon Counties - 318 Main Street, P.O.
Box 2617, La Crosse, Wisconsin 54601, 608-785-2809 or
b. Crawford, Grant, Iowa, Lafayette and Sauk Counties
- 202 West Main Street, P.O. Box 101, Dodgeville,
Wisconsin 53533, 608-935-2741 or 1-800-873-092
(4) WISCONSIN JUDICARE, INC.
Ashland, Barron, Bayfield, Burnett, Chippewa, Clark,
Douglas, Dunn, Eau Claire, Florence, Forest, Iron,
Langlade, Lincoln, Marathon, Marinette, Menominee,
Oconto, Oneida, Pepin, Pierce, Polk, Portage, Price,
Rusk, St. Croix, Sawyer, Shawano, Taylor, Vilas,
Washburn, Waupaca and Wood Counties - 300 Third Street,
Suite 210, P.O. Box 6100, Wausau, Wisconsin 54402-6100,
715-842-1681 or 1-800-472-1638 (Fax 715-848-1885)
TABLE OF SELECTED COURT FEES
OCTOBER 14, 1997
(fees subject to periodic change)
Fee Reference Amount
Appeal Fee 809.25(2) $150.00
Docketing Fee 814.61(5) $ 5.00
Garnishee Fee (Non-Earnings) 812.06 $ 3.00
Garnishee Fee (Earnings) 812.33 $ 15.00
812.42(2)(c)*$ 15.00 public employer
*Plus $3 per payment
after 1st payment
Garnishment Filing Fee 814.62(1);
814.634 and $127.00 claim exceeds $5,000.
814.635 57.00 claim equal/less $5,000.
Jury Demand Fees 814.62(3)(e) $ 53.00
plus 814.61(4) $ 36.00 for jury
Mailed Service Fee 814.62(4) $ 2.00 per defendant
plus cost of certified mail (if used)
Search Fee 814.61 (11) $ 5.00
Sheriff's Service Fees 814.70(1) $ 18.00 per defendant
plus $ 9.00 ea addl defendant
(in Milwaukee County, mileage is always $2.00)
Small Claims Filing Fee 814.62(3);
814.634 and $ 59.00
Witness Fees 814.67(1) $ 16.00 per day
plus $ .20 per mile
The Court will waive these fees for persons unable to
pay them. To request a waiver, you must complete and sign
an affidavit which is available from the clerk (CV-410).
Such a request constitutes consent of the affiant and
counsel that if judgment is in favor of affiant, the
court may order opposing party to pay unpaid fees and
costs and the balance to the affiant. If the affiant is a
prisoner and judgment is in favor of the opposing party,
such a request constitutes consent for the court to order
the prison to deduct the unpaid fees and costs from the
amount in the prisoner's account at the time the judgment
ACTION - A lawsuit.
ADJOURN - To delay a hearing until a future time.
ADVERSE PARTY - Party on the other side of the
AFFIDAVIT OF NON-MILITARY SERVICE - Statement that, to
the best of plaintiff's knowledge, the defendant is not
now in the military.
ANSWER - A statement by the defendant in response to
the plaintiff's complaint.
APPEAL - A request that a higher court review and
change the final decision in a case.
CALENDAR - A schedule of cases to be heard in court.
CAPTION - The heading of a court paper, showing the
court and county, names of parties and case number.
CLERK - An administrative officer of the court.
COMPLAINT - The court paper that states why the
plaintiff is suing and what plaintiff wants the court to
CONTRACT - An agreement.
COURT COMMISSIONER - An attorney authorized to conduct
hearings and initial proceedings.
CREDITOR - A person who is owed money.
DAMAGES - The amount of money requested in a lawsuit
to compensate the plaintiff for injuries to person or
property or for the defendant's failure to perform a
DEBTOR - A person who owes money.
DEFAULT - Failure to answer a complaint or appear for
DEFENDANT - The person who is sued.
DEFENSE - A reason why a claim in a complaint is not
DISMISSAL - A court order terminating a case because
the plaintiff has failed to appear in court or state or
prove a valid claim.
DOCKET - An official list of court judgments.
EVICTION - An action by a landlord to remove a tenant
from the landlord's property.
EXECUTION - A legal procedure in which the sheriff
seizes a debtor's property to pay a judgment.
EXEMPTION - A law allowing a debtor to keep some
property free from the claims of creditors.
EXHIBIT - A paper or thing shown to a court during a
hearing and used as evidence.
FEE - A charge fixed by the law for the service of
GARNISHEE - In garnishments, the party who owes money
to the debtor and is ordered to pay it to the creditor
GARNISHMENT - A proceeding after judgment authorizing
the plaintiff to be paid from the debtor's wages or bank
JUDGMENT - Final decision by the court.
NOTARY PUBLIC - An attorney or other official
authorized to certify the signing of sworn documents.
PARTY - The plaintiff or defendant. In garnishments,
the creditor, the debtor or the garnishee.
PLAINTIFF - The party who begins the lawsuit.
PRETRIAL CONFERENCE - A meeting between the parties
and the judge or court commissioner to investigate
settlement or narrow the disputed issues.
PRO SE - Latin meaning "for oneself," i.e.,
without the aid of a lawyer.
REPLEVIN - A lawsuit seeking return of property.
RETURN DATE - The initial appearance in court.
SERVICE - The delivery of the complaint, summons or
other papers filed by one party to another party.
STIPULATED DISMISSAL - A court order dismissing the
suit upon agreement of the parties. If the agreement is
not kept, the dismissal may be vacated and a judgment
SUBPOENA - A court order that a witness appear in
SUMMONS - A court order that the defendant answer the
complaint or appear in court at a stated time.
TORT - A claim based on an injury caused by the
defendant to the plaintiff or plaintiff's property.
VENUE - The county or counties in which a lawsuit may
be filed and tried.