If the plaintiff has taken possession by virtue of the plaintiff’s judgment, such possession shall not be affected by the vacation of the judgment on the ground that the defaulting defendant was incapacitated at the time of rendition of the judgment; but if the defendant thereafter recovers judgment, the defendant is entitled to judgment for immediate physical possession.
843.16.Possession unaffected by vacating judgment.
Ch. 843: Actions for Possession of Real Property; Damages for Withholding · Last amended 1993 · Last verified July 15, 2026
In one sentenceSection 843.16 protects a plaintiff’s possession taken under a judgment even if that judgment is later vacated because the defaulting defendant was incapacitated, though the defendant who later wins is entitled to immediate physical possession.
Full Text of Section 843.16
Plain-English Summary
Section 843.16 handles a narrow but consequential scenario: a plaintiff obtains a default judgment and takes possession, but the judgment is later vacated because the defaulting defendant turns out to have been incapacitated at the time the judgment was rendered. The section makes clear that vacating the judgment on that ground does not, by itself, disturb the possession the plaintiff already took under it.
The protection is not permanent, though. If the defendant, after the judgment is vacated, goes on to win a judgment in the reopened case, that defendant is entitled to judgment for immediate physical possession. The plaintiff’s interim possession is respected while it lasted, but it does not shield the plaintiff from having to give up the property once the defendant ultimately prevails.
Frequently Asked Questions
If I take possession under a default judgment and it later gets vacated because the defendant was incapacitated, do I have to give up possession right away?
Not automatically. Section 843.16 states that possession taken under such a judgment is not affected by the judgment’s vacation on the ground that the defaulting defendant was incapacitated at the time of rendition.
What happens if the defendant later wins the reopened case?
Section 843.16 entitles the defendant to judgment for immediate physical possession if the defendant thereafter recovers judgment.
Does this protection apply if the judgment is vacated for a reason other than the defendant’s incapacity?
The text of Section 843.16 addresses vacation on the ground that the defaulting defendant was incapacitated at the time of rendition of the judgment; it does not speak to vacation on other grounds.
Does the plaintiff need to have already taken possession for this section to apply?
Yes. Section 843.16 applies where the plaintiff has taken possession by virtue of the plaintiff’s judgment.
Is the defendant’s eventual right to possession automatic, or does the defendant still have to win a judgment?
The defendant must recover judgment. Section 843.16 grants the right to immediate physical possession only if the defendant thereafter recovers judgment in the reopened proceeding.
Amendment History
History: 1973 c. 189; Sup. Ct. Order, 67 Wis. 2d 585, 767 (1975); Stats. 1975 s. 843.16; 1993 a. 486.
Source & verification. Section text and official notes are
reproduced verbatim from the Wisconsin Statutes, published by the
Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026.
· Official source
Also known as: wisconsin vacated default judgment possessionincapacitated defendant default judgment wisconsinpossession after judgment vacated wisconsin843.16 possession unaffected