Judge—Bias and Prejudice—Refusal to Call in Other Judge to Hear Motion for New Trial — Appealable Order.—An order denying a motion made under section 170 of the Code of Civil Procedure, to have some other judge called to preside at the hearing of a motion for a new trial, on account of the alleged bias and prejudice of the local judge, is a special order made after final judgment and appealable as such, under the provisions of section 939 of that code as it existed prior to the amendment of 1915.

Id.—Motion to be Tried on Affidavits—Affidavit of Judge as to State of Mind.—Under section 170 of the Code of Civil Procedure, the qualification of the local judge to preside in a case where sworn objection is made on the ground of his alleged prejudice must be tried on affidavits, and the judge must put in the form of an affidavit an account of his own state of mind, if his fairness is called in question.

Id.—Waiver of Filing of Judge’s Affidavit Prior to Hearing.—The right of the party seeking the substitution of another judge to have the allegations of prejudice contained in his moving affidavits traversed by the local judge’s affidavit before there should be a decision upon the motion, may be waived, and was waived in this case by a stipulation made in open court by counsel of the moving party that the affidavit might be filed at any time.

Id.—Appeal from Order Denting Motion—Jurisdiction of Local Judge.—On an appeal from an order refusing to call in another judge to hear a motion for a new trial, on account of the alleged prejudice of the local judge, the question of the jurisdiction of the local judge to hear any phase of the ease, because of the fact that it had been tried by a judge of another county who had been called to try it, cannot be considered.

Id.—Appointed Judge—Prejudice of Governor Against Litigant.— The fact that a judge was appointed to office by a Governor who entertained feelings of hostility to a litigant, furnishes no evidence that the judge would adopt the Governor’s prejudices and decide the case not according to law, but in a manner that he might think pleasing to the appointing power.