Sunset Road Oil Company, W.S. Tevis, and other defendants appeal from an order overruling an objection by appellants to the hearing by Judge Peairs of a motion for a new trial made by the cross-complainant, Kern Valley Bank, and the intervener, the superintendent of banks, and denying their motion to have some other judge called to preside at the hearing of the motion for a new trial.
The cause was tried before Judge G.W. Nicol of Tuolumne County who presided by consent of all the parties instead of one of the judges resident in Kern County. After the trial of the case Judge Peairs was appointed to the superior bench and appellants made a motion and an objection under section 170 of the Code of Civil Procedure. An affidavit was filed alleging Judge Peairs' bias and prejudice, counter-affidavits were prepared and presented, and Judge Peairs, denying the prayer of appellants, proceeded to hear and determine the motion for a new trial.
Respondents insist that this court lacks jurisdiction to hear this appeal because, they say, an order denying a motion to call in another judge is not a "special order made after final judgment," and is not, therefore, appealable under the provisions of section 939 of the Code of Civil Procedure, as that statute existed prior to the amendment of 1915. They say *Page 489
ID. — PROCEEDING TO ESTABLISH HEIRSHIP — SUCCESSIVE MARRIAGES OF DECEASED — CONFLICTING CLAIMS AS WIDOW — CONTINUANCE OF FIRST MARRIAGE MUST BE SHOWN. — In a proceeding to establish heirship to a deceased person, one claiming to be his widow by virtue of a prior ceremonial marriage has the burden of proof, as against one claiming to be his widow by a subsequent ceremonial marriage, to show that at the very moment of the death of the deceased she was his wife by virtue of a lawful and subsisting marriage. This burden was not met by mere proof of the prior marriage. It was necessary for her to further show that the second marriage was void by proof of the fact that her own earlier marriage had not been set aside by divorce or annulment. It was not incumbent upon the claimant under the second marriage to show that the deceased had been divorced prior to his second marriage.