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What's the difference between and purpose of small claims and non-small claims court? Before
you start any legal action, try to settle your dispute. If you can't
settle and you feel a lawsuit is appropriate, you must decide between
small claims and nonsmall (large) claims court.
Small
claims court provides an informal way to resolve minor lawsuits and
other legal problems. You may use small claims court in any of the
following situations:
- Someone
injures you, damages your property or violates a contract to which
you're a party, and the amount you seek is $5,000 or less;
- You want to repossess property valued at $5,000 or less. This is called a replevin action;
- You
already have a legal judgment for $5,000 or less against someone and
you want to enforce the judgment by seizing funds or property which the
other person possesses (such as wages). This is called a garnishment
(for money) or an attachment (for property); and
- You're a landlord seeking to evict a tenant. Any amount of rent may be owed. The $5,000 limit doesn't apply.
Claims for more than $5,000, except as mentioned above, may not be brought in small claims court.
How is a lawsuit started? A
lawsuit is started by filing a "summons" and a "complaint" with the
clerk of courts. You must have exact copies of these legal papers
stamped by the clerk of courts and then serve them on the people being
sued. The person suing is called the "plaintiff." The person being sued
is the "defendant."
The
"complaint" explains the legal basis for the plaintiff's claims and
states what the plaintiff wants. At the outset various fees must be
paid, and many are subject to change. Presently the filing fee for
small claims is $82 and large claims is $253.
Make sure you're suing in the right county. Your county is the right place if:
- The person or business you're suing (the defendant) resides or does a substantial amount of business in your county;
- Your claim arose in your county; or
- The property involved in your claim is located in your county.
There
often is a charge for having the summons and complaint served. It must
be delivered to the defendant by an adult other than yourself.
The
sheriff charges at least $12 per defendant and 25 cents per mile. (In
Milwaukee County, the sheriff bills a minimum of $4 for mileage.) Fees
charged by private process servers may differ.
If
you require a witness to come to trial, you have to issue a subpoena.
The subpoena must be served just like the summons and complaint, with
the same fees. In addition, you have to pay each witness a fee of $16
per day and 20 cents per mile for travel.
What happens once the lawsuit is started? In Small Claims Court:
A "return date" will be set as the first step. Both you and the
defendant must appear in court at the scheduled day and time. (Some
counties require only a written response or a telephone call from the
defendant instead of a personal appearance.) Bring along proof that the
defendant was served and that he or she owes you the money or property
you claim.
If
the defendant doesn't show up or respond, you may get a default
judgment. In other words, you win. The defendant who does appear will
have to admit or deny the accusations in the summons and complaint. The
defendant may admit all or part of your claim and ask time to pay. Many
cases are settled at this stage.
A
hearing is the next stage in a contested matter. In many counties, a
court commissioner will conduct a hearing at a later date. Both you and
the defendant may present evidence and call witnesses. The hearing is
informal and the court commissioner will help identify the issues.
Rules of procedure and evidence aren't strictly enforced. The court
commissioner's decision may be given orally or in writing. It becomes
final within 11 days if given orally, and within 16 days after the
decision is mailed if in writing. A written decision must be mailed
within 30 days of the hearing.
Along
with the court commissioner's decision, you'll receive instructions on
how and when you may challenge the ruling. Either party has the right
to challenge it and demand a trial before a judge or jury. The demand
for a trial must be made in writing within 10 days of the court
commissioner's oral decision, or within 15 days after the mailing of a
written decision. The party requesting a jury trial must pay a jury fee
plus $6 per juror. In small claims court, the jury is limited to six
people.
The
judge may hold a pretrial conference in an effort to settle the case.
If the case goes to trial, the court commission's ruling won't be
considered.
Note:
In some counties a judge, not a court commissioner, handles small
claims hearings. Be sure to ask the clerk of court for information on
how your county handles small claims.
In Large Claims Court:
If you are sued (that is, if you are the defendant), contact your
lawyer as soon as possible. It's important to tell your attorney
exactly when and how you received the summons. If the papers aren't
delivered to you in the proper manner, and before certain deadlines,
the case against you can't go forward.
Don't sign anything when you're given a summons. If you do, you may lose important legal rights.
Formal
legal documents must be sent to the court and to the lawyer for the
complaining party. A phone call or letter to the other party's lawyer
isn't sufficient.
Usually
you have to respond to a summons within 45 days of the time you receive
it. If you don't make a proper legal response within 45 days, the court
can allow all the other party's claims against you.
What happens if the plaintiff (the person suing) wins? If
you win you obtain a judgment. You're entitled to the money or property
the judge or jury decides is due you, plus out-of-pocket expenses such
as the filing fees and witness fees discussed above.
The
person awarded money damages by the court is called the creditor. The
person who must pay the damages is called the debtor. Under the marital
property law, a debtor's spouse also may have to pay all or a portion
of the money damages. A judgment can be enforced up to 20 years after
it's granted by the court.
The
first step in collecting a judgment is for you to determine the
debtor's assets. To help you do this, you can obtain an order that
requires the debtor to appear before a court commissioner to make a
full disclosure of all assets. The disclosure must include any marital
property that may be in the name of the debtor's spouse. This process
is often called a "supplementary proceeding." If the debtor fails to
appear for the supplementary proceeding, he or she may be judged in
contempt of court.
After
the debtor's assets have been determined, you may collect your judgment
through garnishment or attachment. The debtor also may voluntarily
agree to pay the judgment.
Garnishment:
Garnishment is a legal proceeding in which a creditor can collect a
judgment from wages, bank accounts or other money the debtor may have.
To do this, the creditor returns to court to seek a garnishment - an
order to the debtor's employer, bank officer or other third party to
pay the creditor all or a portion of the debtor's money that the third
party can control.
Attachment:
Attachment is a procedure for seizing the property of someone who owes
money. It's an emergency action designed to be used against someone who
is leaving the state or concealing property in order to avoid paying a
contract or judgment debt. According to Wisconsin law, the debt must be
more than $50, and several other requirements - including a bond or
additional security - must be met before the sheriff can be ordered to
seize the property.
Replevin:
Replevin is a centuries-old English term for what we generally call
"repossession." The action calls for the sheriff to seize particular
property and return it to the rightful owner. For instance, if you buy
a car and fail to make the payments, the dealer or lender may try to
repossess the car. Like attachment, a replevin action requires a bond.
Since
both attachment and replevin involve court procedures and affect
important debtor rights, a lawyer's help - for either a debtor or
creditor - is highly recommended.
Property exempt from garnishment or attachment Wisconsin Statutes specifically exempt certain property from garnishment or attachment. Some of that property includes:
- a homestead;
- livestock;
- farm implements;
- automobiles; and
- certain amounts of income, life insurance benefits or amounts in savings accounts.
What happens if you lose the lawsuit? If
you lose altogether or don't get all the money or property you wanted,
you may take your case to the court of appeals. The appeal fee is $195,
plus a $15 record transmittal fee. You must also pay for the
preparation of the transcipt. Since an appeal is complicated, it's best
to seek legal advice.
Last updated: August 2005 | 
