State Codes and Statutes

Statutes > Wisconsin > 809 > 809.15

809.15

809.15 Rule (Record on appeal).

809.15(1)

(1) Composition of record.

809.15(1)(a)

(a) The record on appeal consists of the following unless the parties stipulate to the contrary:

809.15(1)(a)1.

1. The paper by which the action or proceeding was commenced;

809.15(1)(a)2.

2. Proof of service of summons or other process;

809.15(1)(a)3.

3. Answer or other responsive pleading;

809.15(1)(a)4.

4. Instructions to the jury;

809.15(1)(a)5.

5. Verdict, or findings of the court, and order based thereon;

809.15(1)(a)6.

6. Opinion of the court;

809.15(1)(a)7.

7. Final judgment;

809.15(1)(a)8.

8. Order made after judgment relevant to the appeal and papers upon which the order is based;

809.15(1)(a)9.

9. Exhibits material to the appeal whether or not received in evidence;

809.15(1)(a)10.

10. Any other paper or exhibit filed in the court requested by a party to be included in the record;

809.15(1)(a)11.

11. Notice of appeal;

809.15(1)(a)12.

12. Bond or undertaking;

809.15(1)(a)13.

13. Transcript of reporter's notes;

809.15(1)(a)14.

14. Certificate of the clerk.

809.15(1)(b)

(b) The clerk of the trial court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the trial court.

809.15(2)

(2) Compilation and approval of the record. The clerk of circuit court shall assemble the record in the order set forth in sub. (1) (a), identify by number each paper, and prepare a list of the numbered papers. At least 10 days before the due date for filing the record in the court, the clerk shall notify in writing each party appearing in the circuit court that the record has been assembled and is available for inspection. The clerk shall include with the notice the list of the papers constituting the record.

809.15(3)

(3) Defective record. A party who believes that the record, including the transcript of the reporter's notes, is defective or that the record does not accurately reflect what occurred in the circuit court may move the court in which the record is located to supplement or correct the record. Motions under this subsection may be heard under s. 807.13.

809.15(4)

(4) Processing the record.

809.15(4)(a)

(a) Transmittal of the record. The clerk of circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the transcript designated in the statement on transcript or within 20 days after the date of the filing of a statement on transcript indicating that no transcript is necessary for prosecution of the appeal, unless the court extends the time for transmittal of the record or unless the tolling provisions of s. 809.14 (3) extend the time for transmittal of the record. If additional portions of the transcript are requested under s. 809.11 (5), the clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the additional portions of the transcript.

809.15(4)(b)

(b) Late transcript. If the reporter fails to file the transcript within the time limit specified in the statement on transcript, the clerk of circuit court shall transmit the record not more than 90 days after the filing of the notice of appeal, unless the court of appeals extends the time for filing the transcript of the reporter's notes. If the court extends the time for filing the transcript of the reporter's notes, the clerk of circuit court shall transmit the record within 20 days after the date that the transcript is filed.

809.15(4)(c)

(c) Supplementation or correction of record. Notwithstanding pars. (a) and (b), if a motion to supplement or correct the record is filed in circuit court, the clerk of circuit court may not transmit the record until the motion is determined. A copy of any motion to supplement or correct the record that is filed in circuit court shall be sent to the clerk of the court of appeals. The circuit court shall determine, by order, the motion to supplement or correct the record within 14 days after the filing or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion and shall transmit the record to the court of appeals within 20 days after entry of the order. If the circuit court grants the motion, the clerk of circuit court shall transmit the supplemented or corrected record to the court of appeals within 20 days after entry of the order or filing of the supplemental or corrected record in the circuit court, whichever is later.

809.15(4m)

(4m) Notice of filing of record. The clerk of the court of appeals shall notify the clerk of circuit court and all parties appearing in the circuit court of the date on which the record was filed.

809.15(5)

(5) Agreed statement in lieu of record. The parties may file in the court within the time prescribed by sub. (4) an agreed statement of the case in lieu of the record on appeal. The statement must:

809.15(5)(a)

(a) Show how the issues presented by the appeal arose and were decided by the trial court; and

809.15(5)(b)

(b) Recite sufficient facts proved or sought to be proved as are essential to a resolution of the issues presented.

809.15 - ANNOT.

History: Sup. Ct. Order, 83 Wis. 2d xiii; Sup. Ct. Order, 104 Wis. 2d xi; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 403; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii.

809.15 - ANNOT.

Judicial Council Committee's Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.

809.15 - ANNOT.

Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.

809.15 - ANNOT.

Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.

809.15 - ANNOT.

Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]

809.15 - ANNOT.

Judicial Council Committee's Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re Order effective Jan. 1, 1982]

809.15 - ANNOT.

Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

809.15 - ANNOT.

Judicial Council Note, 2001: Subsection (2) requires that numbers be used to identify the contents of the record. Subsection (4) (a) recreates the general rule for record transmittal from former sub. (4). Exceptions to the general rule are set forth in subs. (4) (b) and (c). Subsection (4m) recreates the last sentence of former sub. (4). [Re Order No. 00-02 effective July 1, 2001]

809.15 - ANNOT.

An appellant's failure to file a motion under sub. (3) did not constitute waiver of the right to challenge the adequacy of the transcript. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987).

809.15 - ANNOT.

It is the appellant's responsibility to assure that the record is complete. If the record is incomplete, it is assumed that the missing material supports the trial court's ruling. Fiumefreddo v. McLean, 174 Wis. 2d 10, 496 N.W.2d 226 (Ct. App. 1993).