In the petition for rehearing it is stated that in the opinion hereinbefore filed an inaccuracy is found in the declaration that a citation followed the filing of said "amended" petition. It is true that the answer of respondents contains no specific allegation that such citation was issued, but nothing to the contrary appears in the pleadings and we must presume that the course pointed out by the statute was pursued. But the matter is of no consequence in this application, as the jurisdiction of the lower court is not attacked upon that ground. When the case comes on for hearing in the superior court, if the parties have not been properly served, advantage can be taken, of course, of the omission.
Petitioners are entirely mistaken in the assertion that weinadvertently passed upon the merits of the application.
Only two jurisdictional questions were argued and presented for determination, one relating to the insufficiency of the original petition in the court below and the want of authority to allow it to be amended, and the other related to the disqualification of the trial judge.
As to the first of these, no issue of fact is presented in the pleadings and we think it perfectly clear that the course that was taken does not involve any excess of jurisdiction.
As to the disqualification of the judge on the ground of bias or prejudice, the rule recognized by the supreme court — and it is a salutary one — is that before prohibition will issue it must appear that affidavits, were filed showing the disqualification and that no counter affidavits were presented. In that particular the petition herein is defective, as pointed out in the original opinion. It does not even appear that the moving party filed any affidavit until after the hearing of the motion, the allegation of the amended petition herein being "that *Page 162 there is on file in the superior court . . . the affidavit of R. Platnauer, " etc.
It may be said that the question of disqualification really resolves itself into one of bias or prejudice, as no facts appear to show that the trial judge is an interested party in the sense of the statute.
But, conceding that on this application, it would be proper for this court to determine the question of the disqualification of the judge, we think, in view of the verified return and the affidavit in its support, that respondents have shown sufficient reason why the writ should not issue and that no demand of substantial justice requires any further hearing in this proceeding.
The petition for rehearing is denied.
Chipman, P. J., and Hart, J., concurred.