Bartlett v. Musliner

Headnote

A preference on the calendar of this court of an action for dower, authorized by the Code of Civil Procedure (§ 791, subd. 6), can be claimed only when the proof required, i. e„, that plaintiff “ has no sufficient means of support aside \from the estate in controversy,” was made and an order allowing the preference obtained as required (§ 793), before the notice of argument was served.

This was a motion to advance the cause on'the calendar.

The following mem. was handed down:

“ The plaintiff claims to have this cause advanced on the calendar as a preferred cause under subdivision 6 of section 791 of the Code of Civil Procedure, which reads as follows: 6 § 6. An action for dower, where the plaintiff makes proof, by affidavit, to the satisfaction of the court, or a judge thereof, that she has no sufficient means of support aside from the estate in controversy.’-

“ The respondent, in noticing the cause for argument in this court, duly claimed the preference authorized by this section. Section 793 provides, that where the right to a preference depends upon facts, which do not appear in the pleadings or other papers upon which the cause is to be tried or heard, the party desiring a preference must procure an order therefor, from the court, or a judge thereof, upon notice to the adverse party. A copy of the order must be served with or before the notice of trial or argument. ‘ The order in a case embraced in subdivision 6 may be made ex parte, and is conclusive.’ It would seem from these provisions that the preference authorized by this subdivision can be claimed only when the proof -is made, and the order allowing a preference is obtained before the notice of argument is served. It does not appear that these proceedings were taken in this case, therefore the motion is denied.”