Litigation Pending

LITIGATION PENDING. - I. CONCEPT. - In the common legal acceptation, the concept of a pending suit, or lis pendens, is meant to signify the existence of an action in progress, that is, that the judge has been seised of the dispute brought by the plaintiff and that the defendant has come to have legal knowledge of it.

With the establishment of such a procedural situation, the possibility of a similar action before the same magistrate or before another equally competent judge is precluded: and this in deference to the principle that one and 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 objection of lis pendens is asserted: an objection which, moreover, finds its primary foundation in the concept of res judicata. One may even say that lis pendens functions as an anticipatory guarantee of the institution of res judicata, inasmuch as it tends to prevent the possible emergence, in one and the same question, pending between the same parties, of two distinct decisions, perhaps contradictory, one of which is in any case vitiated by substantial illegitimacy.

II. THE LITIGATION PENDING IN CANON LAW

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 can be raised after the litis contestatio; in medieval 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 has undoubtedly drawn elements from the legislations mentioned above, has consolidated this institution, giving it, with the passage of time, a particular character.

In order for the exception of lis pendens to take place, it is first of all indispensable, in canon law, as indeed in civil legislations, that the procedural relationship be essentially individualized and differentiated; therefore the three constitutive elements (persons, title and object of the claim) must be well defined. Only the simultaneous identity of the three declared elements makes two controversies identical to each other, even if apparently different: the commonality, on the other hand, of one or two elements gives rise to the figures of continence and connection of cause, which can be considered, according to some writers, a form of partial lis pendens.

In addition to the prerequisite of the identity of the causes, for the purposes of granting the exception there must be the contemporaneous legal knowledge of the identical proceedings on the part of the three subjects: plaintiff, defendant, judge. In relation to this other indispensable element, one notes the profound divergence between canonical legislation, as also Germanic and Austrian legislation, on the one hand, and French and Italian legislation on the other. In the canonical procedural system, the judge, following the oblatio libelli on the part of the plaintiff, has preliminarily declared his own competence, besides having examined the claim, evaluating its foundation. After this prior examination, which is exhausted in a single measure, the same judge orders the notification of the summons to the defendant. From the moment, therefore, of the notification, the procedural relationship is considered integrally existing, and precisely from that moment the suit must be considered pending. This configuration is in contrast with what the French and Italian codes provide, where the summons is considered an act exclusively of a party, the cognizance of which is carried out by the judge only at the moment of the actual appearance of the parties, or of only one of them.

III. EFFECTS OF LIS PENDENS

Such a different determination of the beginning of the procedural relationship, capable of constituting the exception of litispendence, undoubtedly takes on a character of essentiality in view of the effects and consequences that this exception generates: a) in fact, once the exception has been raised and its basis proven, the case, in accordance with can. 1568 CIC, ratione praeventionis, is remitted to the judge who first had the notification of the summons carried out; it is therefore a matter, for the purposes of establishing the ius praeventionis, of proving that notification took place, and it is from this moment, therefore, and not from the date of the order, that priority is determined; b) presupposing the identity of the cases, it follows that the exception may also be raised when the older of them is already at the appeal stage, since «ob istam remissionem altera quae posterior proposita fuit non amittit primum gradum iurisdictionis»; c) another problem worthy of fundamental importance is this: the CIC at 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 strictness regarding 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 can and must be extended also 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, amply 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 strictness of what is prescribed by can. 1568, another question is also raised, to which some authors answer in the affirmative, namely whether the judge may raise the exception of litispendence ex officio: in this regard it is added that this raising may be done not only initio litis, but also at any stage of the trial, and this both in accordance with can. 1568 and by virtue of the supplementary power of the Church referred to in can. 1619 § 2.

Such an ex officio pronouncement of litispendence is also recognized by other legislations (e.g., by the Austrian one), whereas it is not permitted by Italian procedural legislation, together with the exception of res judicata; e) particular importance is then merited by the determinative moment of the pendency of the suit in deference to the principle established in can. 1725 § 5, according to which «cum citatio legitime peracta fuerit aut partes sponte in iudicium venerint... lis pendere incipit; et ideo statim locum habet principium: lite pendente, nihil innovetur».

By this canon, which recalls the fundamental principles of the law of the Decretals, it was intended to paralyze any act performed against a legitimate prohibition. Such acts are defined by the CIC as attentats (can. 1854), whereby canonical legislation «intends... to preserve the integrity of the trial by imposing the prohibition of unilateral innovations with respect to the state in which it finds itself and to the normal developments that are proper to it by effect of the general norms of law and of the provisions legitimately issued by the judge» (Della Rocca).

Naturally a preliminary condition must exist for an innovative act to be considered an attentat, namely that it occurred while the suit was pending. On the other hand, the juridical figure of the attentat cannot be recognized when, e.g., «alienatio iudicii mutandi causa fit, si quis metu futurae litis alienationem dolo malo, ita perficiat, ut aut rem transferat in extraneam personam», etc. Such an act in fact occurs «metu futurae litis» or «de re quae fieri potest litigiosa», and therefore differs from the alienation of the litigious thing, which is already subject to the judge.

There is no doubt that the judicial examination of the attentat constitutes an incidental cause, which in principle suspends the principal trial, but maintains the pendency of the suit for every effect.

passim; Wernz-Vidal, VI, p. 518 ff.; M. Lega-V. Bartoccetti, Commentarius in iudicia ecclesiastica, Roma 1938, passim; F. Della Rocca, Istituzioni di diritto processuale canonico, Torino 1946, passim.

Giuseppe Spinelli