807.12 Suing by fictitious name or as unknown; partners' names unknown.

(1) When the name or a part of the name of any defendant, or when any proper party defendant to an action to establish or enforce, redeem from or discharge a lien or claim to property is unknown to the plaintiff, such defendant may be designated a defendant by so much of the name as is known, or by a fictitious name, or as an unknown heir, representative, owner or person as the case may require, adding such description as may reasonably indicate the person intended. But no person whose title to or interest in land appears of record or who is in actual occupancy of land shall be proceeded against as an unknown owner.

(2) When the name of such defendant is ascertained the process, pleadings and all proceedings may be amended by an order directing the insertion of the true name instead of the designation employed.

(3) In an action against a partnership, if the names of the partners are unknown to the plaintiff, all proceedings may be in the partnership name until the names of the partners are ascertained, whereupon the process, pleadings and all proceedings shall be amended by order directing the insertion of such names.

History: Sup. Ct. Order, 67 Wis. 2d 585, 748 (1975).

This section does not authorize judgment against an unnamed individual. Miller v. Smith, 100 Wis. 2d 609, 302 N.W.2d 468 (1981).

When an action against an unnamed defendant under s. 807.12 was filed on the last day of the limitation period and amended process naming the defendant was served within 60 days after filing, the action was not barred. Relation back requirements of s. 802.09 (3) were inapplicable. Lak v. Richardson-Merrell, Inc. 100 Wis. 2d 641, 302 N.W.2d 483 (1981).

A fictitiously designated defendant's right to extinction of an action does not effectively vest until 60 days after the statute of limitations runs. Lavine v. Hartford Acc. & Indemnity, 140 Wis. 2d 434, 410 N.W.2d 623 (Ct. App. 1987).

A cause of action does not accrue until the plaintiff knows the tortfeasor's identity or reasonably should have discovered it. Spitler v. Dean, 148 Wis. 2d 630, 436 N.W.2d 308 (1989).