Civil Procedure — default judgment — failure to answer — improper service

Listen to this article

Wisconsin Court of Appeals

Civil

Civil Procedure — default judgment — failure to answer — improper service

Lyle Hofacker appeals a default judgment entered in favor of Lila Bates. The circuit court concluded default judgment was proper, pursuant to Wis. Stat. § 806.02(1), because Hofacker failed to timely answer the complaint and therefore did not timely join an issue of law or fact. Hofacker contends he timely joined an issue of law by means of a letter filed with the court, in which he alleged defective service of Bates’ summons. He also argues that the letter constituted a motion under Wis. Stat. § 802.06(2), and, accordingly, after the court denied the motion he was entitled to a ten-day extension of time to answer the complaint. See Wis. Stat. § 802.06(1).

We conclude Hofacker’s letter adequately joined an issue of law, namely, whether Bates’ summons was properly served. We also conclude Hofacker’s letter constituted a motion under Wis. Stat. § 802.06(2). Consequently, Hofacker should have been given ten days after the denial of his motion to answer Bates’ complaint. We therefore reverse the judgment and remand with directions that Hofacker be given ten days in which to file an answer. This opinion will not be published.

2011AP2890 Bates v. Hofacker

Dist III, Pierce County, Damon, J., Per Curiam

Attorneys: For Appellant: Miller, Steven L., River Falls; For Respondent: Krueger, Stuart J., River Falls; Munkittrick, Catherine Ruth, River Falls