LIS PENDENS. —
I. CONCEPT
In the ordinary legal sense, the concept of l. p., or lis pendens, signifies the existence of proceedings in progress, that is, a situation in which the judge has been seised of the action brought by the plaintiff and the defendant has acquired legal knowledge thereof.Once such a procedural situation has arisen, the possibility of analogous proceedings before the same magistrate or another equally competent judge is precluded, in deference to the principle that the same case cannot be examined more than once at the same level of jurisdiction: were this to occur, there would be a contradiction in the nature of judicial power. It is precisely in consideration of this principle that the plea of lis pendens is invoked—an exception, moreover, whose first foundation lies in the concept of res indicata. Indeed, it may be said that lis pendens functions as a prior guarantee of the institution of res indicata, insofar as it seeks to prevent the possible emergence, in the same matter involving the same parties, of two distinct decisions, perhaps contradictory, one of which would in any event be vitiated by substantial illegality.
II. L. P. IN CANONICAL LEGISLATION. - As is obvious, the institution of lis pendens, understood as an exception, has had its importance in the various legal systems. In Roman law there is the exceptio rei (indicatae vel) in iudicium deductae, which may be raised after the litis contestatio; in the intermediate law there is already the exceptio litis pendentis: ubi acceptum est semel iudicium, ibi et finem accipere debet.
The procedural law of the Church, which drew certain elements from the aforementioned legislation, consolidated this institution, giving it, over time, a particular character.
For the exception of lis pendens to apply, it is first of all indispensable, in canon law—as indeed in civil legislation—that the procedural relationship be essentially identified and differentiated; consequently, its three constitutive elements (the persons, the title, and the object of the claim) must be clearly specified. Only the simultaneous identity of the three stated elements makes two disputes identical, even if they appear different: the sharing, on the other hand, of one or two elements gives rise to the forms of containment and connection of actions, which, according to certain writers, may be regarded as a form of partial lis pendens.
In addition to the prerequisite of the identity of the actions, for the exception to be upheld there must be simultaneous legal cognizance of the identical proceedings by the three parties: plaintiff, defendant, and judge. In relation to this other indispensable element, the profound difference between canon law, as also German and Austrian law, on the one hand, and French and Italian legislation, on the other, is apparent. In the canonical procedural system, following the plaintiff’s oblatio libelli, the judge has first declared himself competent, besides having examined the claim and assessed its basis. After this preliminary examination, which concludes with an order, the same judge orders service of the summons on the defendant. From the moment of service, therefore, the procedural relationship is considered fully established, and it is precisely from that moment that the action is to be regarded as pending. This configuration is at odds with the provisions of the French and Italian codes, where the summons is considered an act exclusively of a party, cognizance of which is taken by the judge only when the parties, or one of them, actually appear.
III. EFFECTS OF LIS PENDENS
Such a differing determination of the beginning of the procedural relationship, suitable for constituting the plea of lis pendens, is undoubtedly essential in view of the effects and consequences that this plea generates:a) indeed, once the plea has been raised and its basis proven, the case, pursuant to can. 1568 CIC, ratione praeventionis, is remitted to the judge who first caused the summons to be notified; consequently, for the purpose of establishing the ius praeventionis, it is necessary to prove that notification has taken place, and priority is therefore determined from that moment, and not from the date of the order;
b) presupposing the identity of the cases, it follows that the plea may also be raised when the older of them is already at the appellate stage, since «ob istam remissionem altera quae posterior proposita fuit non amittit primum gradum iurisdictionis»;
c) another problem deserving fundamental consideration is this: the CIC, in can. 1628 § 1, lays down the general principle that all «exceptiones dilatoriae, esse praesertim quae respiciunt personae et modum iudicii, proponendae et cognoscendae sunt ante contestationem litis». This preclusion may, however, be overcome by bearing in mind what can. 1568 prescribes with equal definiteness concerning the ius praeventionis in relation to two or more identical cases pending before different tribunals. In this regard, it is authoritatively held that this ius praeventionis may and must also be extended to the case of two or more identical cases pending before the same tribunal. In support of this argument, the principle of analogy is invoked, broadly legitimized by the safeguarding of the bonum publicum, which in the specific case is reflected in the protection of the nature of jurisdictional power;
d) sub specie boni publici, and also in consideration of the definitive nature of what is prescribed by can. 1568, another question is raised, to which some authors answer in the affirmative: namely, whether the judge may raise the plea of lis pendens ex officio. In this regard, it is added that such a finding may be made not only initio litis, but also at any stage of the proceedings, both by virtue of can. 1568 and by reason of the Church’s supplementary power under can. 1619 § 2.
Such an ex officio declaration of lis pendens is also recognized by other legal systems (e.g., by the Austrian one), whereas it is not permitted by Italian procedural legislation, together with the plea of res judicata;
e) particular importance must then be attached to the moment determining the pendency of the suit, in accordance with the principle established in can. 1725 § 5, according to which «cum citatio legitime peracta fuerit aut partes sponte in iudicium veneriti... lis pendere incipit; et ideo statim locum habet principium: lite pendente, nihil innovetur».
By means of this canon, which recalls the fundamental principles of the law of the Decretals, the legislator intended to paralyze any act performed contrary to a legitimate prohibition. Such acts are defined by the CIC as atentados (can. 1854), and thus canon law «intende... preservare l'integrità del giudizio ponendo il divieto di innovazioni unilaterali dello stesso rispetto allo stato in cui si trova e agli sviluppi normali che gli sono propri per effetto delle norme generali di legge e delle disposizioni legittimamente emanate dal giudice» (Della Rocca).
Naturally, a preliminary condition must exist for an innovative act to be considered an atentado: namely, that it have occurred while the suit was pending. The legal figure of the atentado cannot, however, be discerned when, for example, «alienatio iudicii mutandi causa fit, si quia metu futurae litis alienationem dolo malo, ita perficiat, ut aut rem transferat in extraneam personam», etc. That act, in fact, occurs «metu futurae litis» or «de re quae fieri potest litigiosa», and therefore differs from the alienation of the thing in litigation, which is already subject to the judge.
There is no doubt that the judicial examination of the atentado constitutes an incidental case, which in principle suspends the principal proceedings, but maintains the pendency of the suit for all purposes.
throughout; Wernz-Vidal, VI, p. 518 ff.; M. Lega-V. ARTOTIRITI, Commentarius in iudicia ecclesiastica, Roma 1938, throughout; F. Della Rocca, Istituzioni di diritto processuale canonico, Torino 1946, throughout. Giuseppe Spinelli