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07/01/83 STATE WISCONSIN HIGHER EDUCATIONAL AIDS

July 1, 1983

STATE OF WISCONSIN HIGHER EDUCATIONAL AIDS BOARD, AN AGENCY OF THE STATE OF WISCONSIN, PLAINTIFF-APPELLANT
v.
JEROME A. HERVEY, DEFENDANT-RESPONDENT-PETITIONER; WISCONSIN HIGHER EDUCATION CORPORATION, PLAINTIFF-APPELLANT V. TERESA A. VAN OSS, DEFENDANT-RESPONDENT-PETITIONER



Review of a decision of the Court of Appeals. Affirming Louis J. Ceci, J. Steinmetz, J. (concurring). Ceci and Bablitch, JJ., took no part.

The opinion of the court was delivered by: Ceci

This is a review of an unpublished court of appeals decision which reversed an order of the Dane county circuit court, HONORABLE WILLIAM D. BYRNE, Circuit Judge, dismissing the complaints of the plaintiffs-appellants (Wisconsin Higher Educational Aids Board and Wisconsin Higher Education Corporation) in two actions to recover amounts less than $1,000 due under student loans made to each defendant (Hervey and Van Oss). Both of these cases were commenced as regular civil actions (under ch. 801, et seq., Stats.), rather than small claims actions pursuant to ch. 799, Stats. Neither defendant is a resident of Dane county, where the actions were brought. The issue presented is whether the ch. 799 small claims procedure is mandatory where the amount claimed is $1,000 or less. We agree with the court of appeals that although ch. 799 procedures are mandatory in all actions brought pursuant to that chapter, sec. 799.01 does not require the use of that procedure for actions which, though eligible to be brought under ch. 799, are properly commenced under other statutory provisions. Accordingly, we affirm.

The plaintiff, Wisconsin Higher Educational Aids Board, commenced a contract action against the defendant Jerome Hervey to recover $247.87 allegedly due after Hervey became in default under the provisions of the promissory note for his student loan. Wisconsin Higher Education Corporation commenced a separate action against the defendant Teresa A. Van Oss for the $885.92 allegedly remaining on her student loan.

As noted above, each of these actions was commenced in the circuit court for Dane county as a regular civil action. Hervey resided in Milwaukee county when the action against him was commenced. At the time the action against Van Oss was commenced, her residence was in Brown county. Both Hervey and Van Oss were served in their respective counties of residence.

A motion to dismiss the complaint was filed in each action, on the ground that the plaintiffs had not complied with the small claims procedure of ch. 799. The two cases were consolidated for purposes of the hearing. The defendants argued that under sec. 799.01, Stats., the use of small claims procedure is mandatory where the amount claimed does not exceed $1,000, and since under sec. 799.11(1) (b) and (5), *fn1 venue is the defendant's place of residence or where the defendant is served, the action should have been dismissed. The plaintiffs asserted that the use of the small claims procedure is optional for the claimant and noted that under sec. 801.53, Stats., *fn2 a regular civil action will not be dismissed for improper venue, but instead the defendant may move for a change of venue.

The circuit court granted the defendants' motions to dismiss, holding that the use of small claims procedure is mandatory for claims that fall within the small claims limits. The court stated that the language of sec. 799.01(4) clearly provides that "the procedure in this chapter shall be used in circuit court" when the action is for a money judgment of $1,000 or less.

The court of appeals (in three separate opinions) *fn3 reversed, holding that the use of ch. 799 small claims procedure is not mandatory for claims that are eligible to be brought under that chapter. The court reasoned that the option to bring suit for small claims amounts in either county or circuit court (in a regular civil action or "large claims" action), which existed prior to the Court Reform Act of 1977, was not changed by that act. The court of appeals determined that because there was no apparent legislative intent to make small claims procedure mandatory for claims falling within the parameters of ch. 799, the plaintiffs could choose to use either small claims or regular civil procedure rules.

Section 799.01, Stats., provides in pertinent part:

799.01 Applicability of chapter. "Subject to the limitations of ss. 799.11 and 799.12, the procedure in this chapter shall be used in circuit court in the following actions:

". . .

". . .

". . .

"(4) Other civil actions. Other civil actions where the amount claimed is $1,000 or less, provided that such actions or proceedings are:

"(a) For money judgments only except for cognovit judgments which shall be taken pursuant to s. 806.25; ...


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