Petitioner was adjudged guilty of contempt and given four fines of $500 each. He filed an affidavit of prejudice against Judge Rhodes; the matter was continued to a subsequent date and heard by Judge Bartlett. The petition is based on the technical ground that the question of Judge Rhodes’ disqualification had to be heard in the manner specified in section 170 of the Code of Civil Procedure. However, that section has a proviso reading as follows: “provided, however, that when there are two or more judges of the same court, one of whom is disqualified, the action or proceeding may be transferred to a judge who is not disqualified. ’ ’ Thereafter Judge Rhodes for five days failed to file a denial of his disqualification, and we assume he was disqualified and that the matter was by him transferred to Judge Bartlett. The petition is denied. *
Doran, J., votes to grant the petition.
A petition for a rehearing was denied September 5, 1950. Doran, J., voted for a rehearing. Petitioner’s application for a hearing by the Supreme Court was denied October 16, 1950.