concurring.
Inasmuch as a majority of the Court is of the opinion that § 508.050, RSMo 1986, precludes bringing a municipal corporation into a lawsuit as third-party defendant in a venue other than that in which it could have been initially sued, I have elected to concur in the principal opinion, so that courts will know that they may not allow such third-party filings. If the legislature is not satisfied with this solution it may amend the venue statutes.
I write separately only because of Judge Holstein’s concurrence which, unless rejected by a solid majority of the Court, might encourage other circuit judges to allow such filings. I gather that, had the respondent not dismissed the third-party petition, he would not be disposed to prohibit the circuit court from proceeding further. Although his view on the merits strikes me as logical, and is the one I originally endorsed, I cannot find anything in the proceedings before us which indicates that the respondent exercised her discretion.
The orders against which we issued our preliminary rule, were written on memorandum forms, in the manner customary in the 22nd Judicial Circuit, and read as follows:
Motion of Third-Party Defendant Poepping, Stone, Bach & Assoc, to Dismiss for Improper Venue called and heard. The Court sustains said motion but allows Defendant/Third-Party Plaintiff 20 days to seek an appropriate writ in the Mo. Court of Appeals.
Separate Motion of Third-Party Defendant South River Industrial Levee Sub-district to Dismiss for Lack of Jurisdiction and Improper Venue called heard and sustained. Defendant/Third Party Plaintiff Burlington Northern granted 20 days to seek an appropriate writ in the Missouri Court of Appeals.
These orders demonstrate that the respondent considered that she was without power to allow the third-party proceedings *728to continue. This is further demonstrated by her failure to rule on the discretionary motions which were directed to her in the case. It is entirely appropriate to instruct her as to the extent of her power in a writ proceeding. See State ex rel. Antoine v. Sanders, 724 S.W.2d 502 (Mo. banc 1987); State ex rel. Buffington v. Gaertner, 657 S.W.2d 957 (Mo. banc 1983); and State ex rel. White v. Marsh, 646 S.W.2d 357 (Mo. banc 1983). She may then exercise her discretion as she considers wise. I see no logic in assuming that she exercised discretion simply because she may possess discretion, when the orders demonstrate that she considered that she was compelled to rule as she did.
I concur in the judgment quashing the preliminary rule.