Wis. Stat. § 801.02 — Commencement of action

801.02 AnnotationPursuant to sub. (5), a certiorari action may be commenced in three ways: 1) under sub. (1) by summons and complaint; 2) by service of an appropriate writ; or 3) by filing a complaint and serving it along with an order, in lieu of a summons, upon the defendant. Nickel River Investments v. City of La Crosse Review Board, 156 Wis. 2d 429, 457 N.W.2d 333 (Ct. App. 1990). See also Tobler v. Door County, 158 Wis. 2d 19, 461 N.W.2d 775 (1990).

801.02 AnnotationSetting forth the test to determine whether defects in summons and complaints are fatal. The trial court has jurisdiction if the error is technical and the complainant can show that the defendant is not prejudiced. When the error is fundamental, no jurisdiction may attach. American Family Mutual Insurance Co. v. Royal Insurance Co. of America, 167 Wis. 2d 524, 481 N.W.2d 629 (1992).

801.02 AnnotationA summons that designated an attorney to receive the defendant’s answer, but was signed by the plaintiff, was technically defective and did not deprive the court of personal jurisdiction. Dungan v. County of Pierce, 170 Wis. 2d 89, 486 N.W.2d 579 (Ct. App. 1992).

801.02 AnnotationSub. (1) applies to the service of amended complaints. Archambault v. A-C Product Liability Trust, 205 Wis. 2d 400, 556 N.W.2d 392 (Ct. App. 1996), 95-3266.

801.02 AnnotationA summons served by publication under sub. (3) must be authenticated. When an authenticated copy of the summons was published, but an unauthenticated copy was mailed, together with authenticated copies of the original summons and complaint, there was a technical, but no fundamental, error. Burnett v. Hill, 207 Wis. 2d 110, 557 N.W.2d 800 (1997), 94-2011.

801.02 AnnotationAn inmate challenging the calculation of the inmate’s mandatory release date is not seeking relief from a judgment of conviction or a sentence of a court, does not fall within sub. (7) (a) 2. c., and is therefore a “prisoner” within the meaning of sub. (7) who must comply with the requirements of that subsection. State ex rel. Stinson v. Morgan, 226 Wis. 2d 100, 593 N.W.2d 924 (Ct. App. 1999), 98-2971.

801.02 AnnotationFor a paper to be filed, it must be properly deposited with the clerk under s. 59.40 (2). “Properly” connotes complying with formality or correctness, but is not susceptible to exact definition. The delivery of papers to the clerk at the clerk’s home after business hours was too far removed from legislative guidelines to be considered properly deposited. Granado v. Sentry Insurance, 228 Wis. 2d 794, 599 N.W.2d 62 (Ct. App. 1999), 98-3675.

801.02 AnnotationThe sub. (7) (d) dismissals rule does not apply when a prisoner has sufficient prison trust funds to pay the filing fee in full. A court order under s. 814.29 (1m) (d) is required to release the funds. State ex rel. Coleman v. Sullivan, 229 Wis. 2d 804, 601 N.W.2d 335 (Ct. App. 1999), 98-2599.

801.02 AnnotationThe definition of “correctional institution” in sub. (7) (a) 1. does not include an out-of-state county jail, and therefore a Wisconsin inmate sent to such a jail is not a prisoner under sub. (7) (a) 2. State ex rel. Speener v. Gudmanson, 2000 WI App 78, 234 Wis. 2d 461, 610 N.W.2d 136, 99-0568.

801.02 AnnotationSub. (7) (d), as applied to the petitioner, did not violate the constitutional guarantees of access to the courts or equal protection. State ex rel. Khan v. Sullivan, 2000 WI App 109, 235 Wis. 2d 260, 613 N.W.2d 203, 99-2102.

801.02 AnnotationA petitioner who seeks to overturn the revocation of probation by a writ of certiorari is a prisoner under sub. (7) (a) 2. A probation revocation is not analogous to a judgment of conviction or a sentence, and a writ of certiorari challenging revocation is not subject to the exclusion under sub. (7) (a) 2. c. State ex rel. Cramer v. Court of Appeals, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591, 99-1089.

801.02 AnnotationAn appeal is not included in “any action or special proceeding” that is subject to dismissal under sub. (7) (d). State ex rel. Adell v. Smith, 2000 WI App 188, 238 Wis. 2d 655, 618 N.W.2d 208, 00-0070.

801.02 AnnotationFormer sub. (7), 1995 stats., did not apply to a petition for a writ of certiorari seeking judicial review of a probation revocation by the Department of Administration. State ex rel. Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150, 99-0182.

801.02 AnnotationThe requirement of exhaustion of administrative remedies under sub. (7) (b) is applicable to a case advancing a constitutional challenge. There is no common law futility exception. This section also controls over s. 227.40, which in some cases allows obtaining a declaratory judgment without exhausting all administrative remedies. State ex rel. Hensley v. Endicott, 2001 WI 105, 245 Wis. 2d 607, 629 N.W.2d 686, 00-0076.

801.02 AnnotationNeither sub. (1) nor s. 801.11 allows a defendant who is being sued in a dual capacity, personally and officially, to be served in only one of those capacities. When an officer of a company received service on behalf of the company, receiving one copy of a summons and complaint, but was not served as an individual, although named individually, there was no jurisdiction over the defendant as an individual. Useni v. Boudron, 2003 WI App 98, 264 Wis. 2d 783, 662 N.W.2d 672, 02-1475.

801.02 AnnotationSub. (7) (d) plainly provides that a dismissal must be of an appeal, writ of error, action, or special proceeding to be counted as a dismissal, and a partial dismissal—i.e., the dismissal of a claim or claims from a suit that proceeds on one or more viable claims—is not the dismissal of an action. Thus, a partial dismissal cannot be counted as dismissal of an action under sub. (7) (d). State ex rel. Henderson v. Raemisch, 2010 WI App 114, 329 Wis. 2d 109, 790 N.W.2d 242, 09-1850.

801.02 AnnotationWhen the complaint served on the defendant was unsigned, even though it was nonetheless authenticated by the clerk of courts, and the complaint on file with the trial court was signed, the filing of the signed summons and complaint properly commenced the lawsuit, and the authenticated copy served on the defendant gave the defendant sufficient notice to that effect. Mahoney v. Menard Inc., 2011 WI App 128, 337 Wis. 2d 170, 805 N.W.2d 728, 10-1637.

801.02 AnnotationA plaintiff need not demonstrate the existence of an emergency in order to initiate a certiorari action using the complaint and order method under sub. (5). Koenig v. Pierce County Department of Human Services, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632, 15-0410.

801.02 AnnotationUnder sub. (5), it is the filing of a complaint that matters for purposes of determining whether a certiorari action is commenced within the applicable time limitation, not the obtaining and serving of an order. Koenig v. Pierce County Department of Human Services, 2016 WI App 23, 367 Wis. 2d 633, 877 N.W.2d 632, 15-0410.

801.02 AnnotationFiling and serving a summons and complaint is a permissible way to commence a certiorari action under sub. (5). The complaint and summons method requires a timely response. State ex rel. Kurtzweil v. Sawyer County Zoning Board of Appeals, 2023 WI App 43, 409 Wis. 2d 77, 995 N.W.2d 286, 22-1577.

801.02 AnnotationSub. (7) (c) and (d) does not establish that denial of a prepayment waiver is the exclusive adverse consequence when a prisoner fails to timely submit all administrative-process documents. Instead, the last sentence of sub. (7) (d) merely identifies dismissal of a petition for prepayment waiver as one consequence because additional remedies are understood from context. Mitchell v. Buesgen, 2024 WI App 14, 411 Wis. 2d 269, 4 N.W.3d 596, 22-1076.

801.02 AnnotationThe combined effects of sub. (7) (c) and s. 893.735 (2) and (3) is that the administrative-process documents expansively described in sub. (7) (c) are required to timely pursue a prepayment waiver, and they are also required under s. 893.735 to timely commence a writ action. Mitchell v. Buesgen, 2024 WI App 14, 411 Wis. 2d 269, 4 N.W.3d 596, 22-1076.

801.02 AnnotationTimely Service Abroad in Diversity Suits. La Fave. Wis. Law. Nov. 2000.

Wis. Stat. § 801.02 (2026)

Commencement of action