John A. Nichols, Respondent, v. The Scranton Steel Company, Appellant

John A. Nichols, Respondent, v. The Scranton Steel Company, Appellant. The provision of the Code of Civil Procedure (§ 791) which specifies as one of the causes entitled to a preference “a cause entitled to a preference by the general rules of practice ” (sub. 10, § 791) does not apply to this court (§ 3347). To obtain a preference upon the calendar of this court, in a case not designated by said Code or the rules of the court, the application must be addressed to the discretion of the court, upon-a showing of such facts as may be deemed to render a preference proper in the interests of justice. Upon motion for a preference the sole facts relied upon were that certain certificates of stock belonging to the appellant had been levied upon by virtue of and were held under an attachment issued in the action. Held, that this did justify the granting of the motion. (Argued October 3, 1892; decided October 11, 1892.) Motion for a preference upon the calendar. The following is the opinion in full: “A preference is claimed by the appellant upon our calendar, on the ground that the property of the defendant is held under attachment, and subdivision 10 of section 191 of the Code is relied upon. That provision adds to the list of causes to be preferred, “ a cause entitled to preference by the general rules of practice, etc.’ The rules referred to are those of the Supreme Court, and rule numbered 36 requires that ‘ if the property of the defendant be held under attachment, the action shall be placed on a preferred calendar.’ This rule does not furnish, of itself, a reason for a preference upon the calendar of this court. Section 191 of the Code is expressly restricted in its operation by section 3341. By subdivision 6 of that section it is provided that chapter VIII, in which section 191 is found, applies only to ‘proceedings taken in an action or special proceedings in one of the courts specified in subdivision fourth of this (3341) section,’ excepting certain specified sections, among which section 191 is not given. The subdivision fourth referred to specifies courts other than the Court of Appeals. Section 3341 was enacted to regulate the application of certain portions of the Code. An exception to such application is provided for where the particular provision in a chapter, specified in a subdivision of the section, expressly designates the courts, in which case the provision is deemed excluded from the application of the subdivision. “ In section 791, certain subdivisions do expressly designate, or include this court, but in subdivision 10 the preference is made to depend on the Supreme Court rules. Therefore, to obtain a preference upon the calendar of this court, in a case where it is not designated by the Code, or in our rules, the application must be addressed to the discretion of the court, upon a showing of such facts as may be deemed to render a preference proper to be awarded in the interests of justice. “ In this case the bare fact is made to appear in the moving papers that the sheriff levied upon certain certificates of stock belonging to this defendant, and in the possession of another party, and that the certificates continue to be held under that attachment. This is not such a showing as to justify us in preferring the argument of appeal over other causes on the general calendar. “ The motion should be denied, but, under the circumstances, without costs.” Wilson & WalUs for appellant. H. P. Sta/rbuck for respondent. [MAJORITY] Gray, J., reads for denial of motion. All concur. Motion denied.