Opinion
No. 12806.
January 3, 1983.
Thomas Strong, Mathew W. Placzek, John Wooddell, Strong Placzek, P.C., Springfield, for plaintiff.
No appearance for defendant.
Plaintiff seeks to prohibit the defendant from proceeding in an action pending before him, styled Hugh J. Shannon Irrevocable Living Trust, Hugh J. Shannon, trustee v. Doris E. Shannon and William J. Cox, Recorder of Deeds for the County of Christian Missouri. It was filed in Christian County and sought to cancel certain notices of lis pendens (§ 527.260, RSMo 1978) filed in Christian County by Doris E. Shannon in connection with litigation between her and Hugh J. Shannon, pending in Barry and Greene Counties.
In this action plaintiff contends that defendant is improperly proceeding because a separate action does not lie to invalidate a notice of lis pendens. She also contends that the venue of that action was improper, a question we do not reach.
Where a petition reveals that the plaintiff has not stated, and cannot state, a cause of action of which the circuit court would have jurisdiction, prohibition will lie. State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141, 148 (Mo.App. 1974). See also State ex rel. State Highway Commission v. Elliott, 326 S.W.2d 745, 750 (Mo. banc 1959).
Generally, only on final judgment adverse to plaintiff's claim can she be forced to release her notice of lis pendens. State ex rel. Leverage Investment Enterprises, Ltd. v. Yeaman, 581 S.W.2d 53, 57 (Mo.App. 1979); 51 Am.Jur.2d Lis Pendens, § 32, p. 979. See also 3 Merrill On Notice, § 1168, p. 91 (1952); 5 Tiffany, The Law of Real Property, § 1296, p. 85 (1939); 54 C.J.S. Lis Pendens § 28, p. 597. There is good reason for such a rule. Only by keeping the notice effective can the status quo be maintained and plaintiff's claim to the property preserved until that claim is finally determined. State ex rel. Leverage Investment Enterprises, Ltd. v. Yeaman, supra, 581 S.W.2d at 57 and 58. See also Bristow v. Thackston, 187 Mo. 332, 86 S.W. 94, 98 (1905). Ordinarily a notice of lis pendens cannot be cancelled while the action is pending and undetermined except in cases expressly provided for by statute. 54 C.J.S. Lis Pendens, § 37, p. 605. Section 527.260, RSMo 1978, contains no provision for cancellation.
The exceptions to this general rule are not applicable here. They are that the notice of lis pendens may be terminated if the suit is dismissed or not diligently prosecuted. See Bristow v. Thackston, supra, 86 S.W. at 98; 51 Am.Jur.2d, Lis Pendens, § 33, p. 980 and § 35, p. 982; 54 C.J.S. Lis Pendens, §§ 29-31, pp. 597-599. Neither has occurred here.
The authorities stating the general rule may presuppose that the one seeking to cancel the notice is a party to the suit described in it. However, by intervention (See Rule 52.12) a non-party claiming an interest in the property can become a party and multiple suits can be avoided and the notice kept effective until final judgment. To allow a separate suit would conflict with the purpose of the notice. The petition in the underlying action does not state a claim for which relief can be granted nor could an amendment be made which could state a proper action on the theory pursued. Thus the trial court should not entertain that action.
The preliminary order is made permanent.
MAUS, P.J., and HOGAN, J., concur.