Definition
A notice of action is a formal written notification that a party intends to commence, or has commenced, a legal proceeding. The term carries two related but distinct meanings depending on context:
1. PRE-SUIT NOTICE TO PUBLIC OFFICERS: A statutory requirement, historically common in English practice and carried into many American jurisdictions, obligating a prospective plaintiff to notify a public official — such as a justice of the peace, constable, or highway surveyor — of the intended lawsuit before filing suit. The notice typically specified the nature of the claim and allowed the officer a defined period (often one month in English practice) to tender amends before an action could proceed.
2. NOTICE OF PENDING ACTION (LIS PENDENS): In modern American practice, "notice of action" is frequently used as a synonym for lis pendens — a recorded document alerting third parties, particularly prospective purchasers and encumbrancers, that real property is the subject of pending litigation. Filing such a notice in the public land records preserves the plaintiff's claim against subsequent transferees who would otherwise take the property as bona fide purchasers without actual knowledge of the suit.
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Common Confusion
These two meanings are easily conflated, and researchers must distinguish them by context and era. The pre-suit notice to a public officer is a condition precedent to bringing suit — it is not filed in court and does not create a record against property. The lis pendens notice of action, by contrast, is filed in property records and operates as constructive notice to the world. Historical sources almost exclusively address the first meaning; modern procedural codes and real estate statutes primarily address the second. Using a historical dictionary definition to interpret a modern "notice of action" filing in real property records, or vice versa, will produce a fundamental misreading.
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Why It Matters in Research
The dual meaning of this term creates a genuine trap in historical corpus research. Pre-nineteenth-century English practice and the treatises that codified it — including Chitty's General Practice, cited by Rapalje & Lawrence — treat notice of action as a protective device for public officers executing statutory duties, not as a property-records instrument. If you encounter "notice of action" in materials from this era or drawn from English sources, the public-officer meaning almost certainly applies.
The lis pendens usage dominates in American jurisdictions from the mid-nineteenth century forward, particularly as recording acts developed and courts required more systematic methods of alerting third parties to pending disputes over land title. Many American states eventually enacted specific lis pendens statutes that formally adopted the phrase "notice of action" as the statutory label for the filing. California's code is among the best-known examples, but the terminology spread broadly. When researching a modern jurisdictional question, confirm whether your state's recording or civil procedure statute uses "notice of action" as a defined term of art, because the procedural requirements — timing, content, service, cancellation — vary considerably.
For corpus connections: the public-officer variant intersects with research on official immunity, indemnification of public servants, and the historical "amends" procedure (see Rapalje & Lawrence's cross-reference to AMENDS). The lis pendens variant connects directly to research on recording acts, bona fide purchaser doctrine, and the race-notice priority framework. A researcher following either thread will quickly need the related concepts listed below.
Researchers should also be alert to the gap between jurisdictions that require pre-suit notice as a statutory condition precedent (failure to comply may defeat the action entirely) and those that treat notice as merely procedural. In the public-officer context, noncompliance historically could be fatal to the plaintiff's claim, making this a significant issue in historical tort and statutory interpretation research.
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Historical Dictionary Support
Black's Law Dictionary and Rapalje & Lawrence align closely on the public-officer meaning, which reflects the dominant English statutory tradition at the time those dictionaries were compiled. Rapalje & Lawrence is the more detailed of the two, explicitly identifying the categories of public servants covered — magistrates, constables, highway surveyors — and citing Chitty's General Practice for the procedural mechanics. Both sources treat notice of action as a condition precedent, not a mere formality.
Neither historical source addresses the lis pendens or property-records usage in any depth, which is consistent with the fact that American recording-act practice was still developing when these dictionaries were written. This is a genuine gap: a researcher relying solely on Black's or Rapalje & Lawrence for a modern real estate or civil procedure question will find the historical entries incomplete and potentially misleading. The property-records meaning requires recourse to modern procedural codes, state recording statutes, and contemporary treatises rather than the historical dictionary shelf.
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Jurisdictional Note
In states that have codified lis pendens as "notice of action" — California being the prominent example — the statute specifies filing requirements, required contents, service obligations, and procedures for expungement. These requirements differ meaningfully from state to state. The pre-suit notice requirement for public officers, once widely required by statute in American jurisdictions modeled on English practice, has been substantially modified or abolished in many states through tort claims acts and sovereign immunity reforms.
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Encyclopedia Cross-Reference
civpro_120: Lis Pendens and Notice of Pending Action — The Law Mind Civil Procedure & Evidence Encyclopedia
realestate_12: Recording Acts — Race, Notice, Race-Notice, and the Bona Fide Purchaser Doctrine — The Law Mind Real Estate Transactions & Construction Encyclopedia
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