Wisconsin Statutes
Wis. Stat. § 805.04 (2026)
Voluntary dismissal: effect thereof
✓ current as of July 2026
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805.04(1)(1) By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.
805.04(2)(2) By order of court. Except as provided in sub. (1), an action shall not be dismissed at the plaintiff’s instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.
805.04(3)(3) Counterclaim, cross claim and 3rd-party claim. This section applies to the voluntary dismissal of any counterclaim, cross claim, or 3rd-party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.
805.04(4)(4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.
805.04 HistoryHistory: Sup. Ct. Order, 67 Wis. 2d 585, 691 (1975); 2005 a. 253; 2007 a. 20, 97; 2015 a. 55.
805.04 AnnotationAssessment of attorney fees as a condition of voluntary dismissal without prejudice was within the trial court’s discretion. Dunn v. Fred A. Mikkelson, Inc., 88 Wis. 2d 369, 276 N.W.2d 748 (1979).
805.04 AnnotationVoluntary dismissal with prejudice rarely entitles the defendant to an award of fees and costs. Bishop v. Blue Cross & Blue Shield United of Wisconsin, 145 Wis. 2d 315, 426 N.W.2d 114 (Ct. App. 1988).
805.04 AnnotationA condemnee may voluntarily dismiss an appeal to a circuit court under this section without court order. Dickie v. City of Tomah, 160 Wis. 2d 20, 465 N.W.2d 262 (Ct. App. 1990).
805.04 AnnotationIf any adverse party to an action files a responsive pleading prior to the time that the plaintiff attempts to dismiss the action under sub. (1), a voluntary dismissal without prejudice is no longer obtainable. Gowan v. McClure, 185 Wis. 2d 903, 519 N.W.2d 692 (Ct. App. 1994).
805.04 AnnotationThe trial court did not abuse its discretion in granting the plaintiff’s motion for dismissal without prejudice in order that the plaintiff could refile in an attempt to take advantage of a new statutory enactment. The prejudice this section protects against is that of putting the defendant through the expense of a lawsuit without being able to obtain a final determination on the merits, not from being disadvantaged by a legislative policy change. Estate of Engebose v. Moraine Ridge Ltd. Partnership, 228 Wis. 2d 860, 598 N.W.2d 584 (Ct. App. 1999), 98-3019.
805.04 AnnotationThis section only applies to dismissals; it does not address vacating judgments. Once judgment is entered, there is no action to dismiss. Bank One Wisconsin v. Kahl, 2002 WI App 312, 258 Wis. 2d 937, 655 N.W.2d 525, 02-0835.
805.04 AnnotationSub. (1), the voluntary dismissal statute, does not apply in a CHIPS proceeding because it is different from and inconsistent with s. 48.24 (4), which is construed to provide that a district attorney may withdraw a CHIPS petition only with the approval of the court. State ex rel. Kenneth S. v. Circuit Court, 2008 WI App 120, 313 Wis. 2d 508, 756 N.W.2d 573, 08-0147.
805.04 AnnotationIf doubt exists regarding the finality of an order of dismissal, the court may look beyond the words “with prejudice” to determine if the dismissal was meant to be conclusive. Brye v. Brakebush, 32 F.3d 1179 (1994).
Notes of Decisions
Cited in 35
cases (9 in the last 5 years), 1978–2026 · leading case: Dickie v. City of Tomah, 465 N.W.2d 262 (Wis. Ct. App. 1990).
Dickie v. City of Tomah, 465 N.W.2d 262 (Wis. Ct. App. 1990). “The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant.”
Gowan v. McClure, 519 N.W.2d 692 (Wis. Ct. App. 1994). “Shortly thereafter, Teetaert faxed a communication to Gowan wherein he explained that because a responsive pleading had already been filed, Gowan could no longer unilaterally dismiss the complaint without prejudice pursuant to § 805.04, STATS. The communication further advised…”
Loy v. Bunderson, 320 N.W.2d 175 (Wis. 1982). “The court was clearly required under sec. 805.04(2), Stats., [4] to approve settlements, releases, *412 and dismissals.”
Johnson v. Cnty. of Crawford, 536 N.W.2d 167 (Wis. Ct. App. 1995). “The United States Court of Appeals for the Seventh Circuit relied on this provision in applying federal law.”
Prince Corp. v. James N. Vandenberg, 2016 WI 49 (Wis. 2016). “I would reverse the decision of the court of appeals holding that the circuit court did not err in refusing to order partition.4 Were it not for the parties' possible settlement, I would remand the cause to the circuit court to consider whether to order partition by sale to Van…”
State Ex Rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008 WI App 120 (Wis. Ct. App. 2008). “1 The parent contends that, because all parties stipulated to dismissal under Wis. Stat. § 805.04 (1), the voluntary dismissal statute, the circuit court has no authority to reject a dismissal.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32 (Wis. Ct. App. 2013). “We need not address Credit Acceptance's related, alternative argument that, even if its Notice of Right to Cure was improper, it was a mere procedural deficiency which could be cured by a later refiling, and that Kirk waived any objection to refiling when he stipulated to the…”
In Re Jud. Disciplinary Proceedings Against Breitenbach, 482 N.W.2d 52 (Wis. 1992). “Clark, Chief Deputy Clerk 1 Section 805.04, Stats, provides: *107 Voluntary dismissal: effect thereof.”
Bank One Wisconsin v. Kahl, 2002 WI App 312 (Wis. Ct. App. 2002). “On appeal, Bank One argues it had a statutory right to dismiss the foreclosure judgment because the Kahls never filed a responsive pleading under Wis. Stat. § 805.04 , and the court erred by applying Wis.”
Cmty. Credit Plan, Inc. v. Johnson, 586 N.W.2d 77 (Wis. Ct. App. 1998). “Before it addressed the motions to dismiss, however, in each case, the trial court received *771 and granted a motion by the Creditor to voluntarily dismiss pursuant to § 805.04(2), STATS. [1] In conjunction with their motions to open and dismiss, the Customers sought to recover…”
Creditbox.com, LLC v. Antjuan Weathers, 2023 WI App 37 (Wis. Ct. App. 2023). “§ 805.04(1) because Weathers had not filed a responsive pleading.”
Clark v. Mudge, 599 N.W.2d 67 (Wis. Ct. App. 1999). “The court considered the Clarks's request in light of § 805.04(2), Stats., which governs voluntary dismissals.”
— Wis. Stat. § 805.04(1) — 9 cases
Dickie v. City of Tomah, 465 N.W.2d 262 (Wis. Ct. App. 1990). “The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant.”
Gowan v. McClure, 519 N.W.2d 692 (Wis. Ct. App. 1994). “Shortly thereafter, Teetaert faxed a communication to Gowan wherein he explained that because a responsive pleading had already been filed, Gowan could no longer unilaterally dismiss the complaint without prejudice pursuant to § 805.04, STATS. The communication further advised…”
In Re Jud. Disciplinary Proceedings Against Breitenbach, 482 N.W.2d 52 (Wis. 1992). “Clark, Chief Deputy Clerk 1 Section 805.04, Stats, provides: *107 Voluntary dismissal: effect thereof.”
Creditbox.com, LLC v. Antjuan Weathers, 2023 WI App 37 (Wis. Ct. App. 2023). “§ 805.04(1) because Weathers had not filed a responsive pleading.”
State Ex Rel. Kenneth S. v. Circuit Court for Dane Cnty., 2008 WI App 120 (Wis. Ct. App. 2008). “1 The parent contends that, because all parties stipulated to dismissal under Wis. Stat. § 805.04 (1), the voluntary dismissal statute, the circuit court has no authority to reject a dismissal.”
— Wis. Stat. § 805.04(2) — 19 cases
Loy v. Bunderson, 320 N.W.2d 175 (Wis. 1982). “The court was clearly required under sec. 805.04(2), Stats., [4] to approve settlements, releases, *412 and dismissals.”
Johnson v. Cnty. of Crawford, 536 N.W.2d 167 (Wis. Ct. App. 1995). “The United States Court of Appeals for the Seventh Circuit relied on this provision in applying federal law.”
Cmty. Credit Plan, Inc. v. Johnson, 586 N.W.2d 77 (Wis. Ct. App. 1998). “Before it addressed the motions to dismiss, however, in each case, the trial court received *771 and granted a motion by the Creditor to voluntarily dismiss pursuant to § 805.04(2), STATS. [1] In conjunction with their motions to open and dismiss, the Customers sought to recover…”
Clark v. Mudge, 599 N.W.2d 67 (Wis. Ct. App. 1999). “The court considered the Clarks's request in light of § 805.04(2), Stats., which governs voluntary dismissals.”
Bishop v. Blue Cross & Blue Shield United, 426 N.W.2d 114 (Wis. Ct. App. 1988).
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