veloped that the plaintiff had not strictly complied with the statutory requirements concerning the giving of notice of dishonor, and thereupon, in response to defendant's motion for nonsuit, the plaintiff sought and was granted permission to amend his complaint to conform to the proof by alleging that his failure to give the required notice was attributable to the fact that, after due and diligent search, he was unable to ascertain the residence, place of business, or whereabouts of the defendant Meyer. With the complaint thus amended the trial of the action proceeded, and when the plaintiff again rested, the motion for nonsuit upon behalf of the defendant Meyer was renewed upon the ground that the plaintiff's evidence failed to show that he had exercised reasonable diligence to ascertain the place of residence and whereabouts of said defendant, and that therefore his failure to give the notice of dishonor was not excused by the provisions of section 3155 of the Civil Code.

Upon this phase of the case the evidence was to the effect that on the afternoon of the day when the note in suit fell due the agent of the plaintiff called at the office of the defendant corporation, the maker of the note, for the purpose of demanding payment, and was informed by a stenographer in charge of the office that both the president and secretary of the corporation were not in. Later on the same day the plaintiff's agent again called, and meeting either the president or secretary, demanded payment of the note. Payment was refused. At about 5 o'clock on the same day plaintiff's agent called upon the defendant Aronsohn, who was also an indorser on the note, and presented him with a written notice of dishonor and a demand for payment. Plaintiff's agent at the same time asked Aronsohn for the address of the defendant Meyer. Aronsohn thereupon gave to him a written memorandum showing the resident address of Mrs. Meyer to be 1654 Devisadero Street in the city and county of San Francisco. Plaintiff's agent then proceeded to the office of the defendant corporation, where he met Stoltz Sr. and Jr., respectively the president and secretary of the corporation, and after some conversation concerning the note and its nonpayment, rewrote on an envelope, in the presence of the Stoltzes, the address of defendant Meyer as previously given him by Aronsohn. On the following day, close to the noon hour, plaintiff's agent went to the address given him by Aronsohn, but

was unable to find the defendant Meyer there or ascertain her whereabouts. Plaintiff's agent then proceeded to his office, arriving there about 1 o'clock, and there prepared a notice of nonpayment and dishonor, which was mailed to Mrs. Meyer later in the afternoon.

This evidence, we think, justified the denial of the motion for nonsuit, and sufficiently supports the finding of the trial court to the effect that the plaintiff, by his agent, had made due and diligent search to locate the residence and place of business of the defendant Meyer for the purpose of serving her with notice of presentment, dishonor, and nonpayment of the note in suit.

We see no abuse of discretion in the ruling of the trial court permitting the plaintiff to amend his complaint.

The judgment and order appealed from are affirmed.

A petition for a rehearing of this cause was denied by the district court of appeal on January 29, 1917, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 29, 1917, and the following opinion then rendered thereon:

THE COURT.-The petition for a rehearing is denied. It is based upon the sole ground that the court failed to consider and pass upon the sufficiency of the complaint as finally amended at the trial. The only appellant herein is the defendant Meyer. The original complaint was insufficient in its averments as to notice of dishonor as against the special demurrer of Meyer. The amendment, however, made during the trial pleaded an excuse for giving Meyer notice of dishonor substantially in the language of subdivision 1 of section 3155 of the Civil Code. To this amendment, which obviated the effect of appellant's original special demurrer, no demurrer, either general or special, was presented. We think it sufficiently rectified the defect in the original complaint in the absence of a special demurrer.

[Civ. No. 2272. Second Appellate District.-January 3, 1917.] CITY OF SAN DIEGO (a Municipal Corporation), et al., Petitioners, v. EDWIN M. CAPPS, as Mayor, etc., Respondent.

MUNICIPAL CORPORATIONS-CHIEF OF POLICE OF SAN DIEGO-APPOINTMENT BY MAYOR-MANDAMUS-RIGHT OF COMMON COUNCIL.-The common council of the city of San Diego have such a beneficial interest in the appointment of a superintendent or chief of police for such city by the mayor thereof, as provided by the freeholders' charter of the city of San Diego, as to make them proper parties under section 1086 of the Code of Civil Procedure to petition for a writ of mandamus to compel such executive to make the appointment upon his refusal to do so.

APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel the mayor of the City of San Diego to appoint a superintendent or chief of police.

The facts are stated in the opinion of the court.

T. B. Cosgrove, City Attorney, for Petitioners.

Arthur L. Dorn, for Respondent.

JAMES, J.-Petition in mandamus for a writ to compel the respondent, mayor of the city of San Diego, to appoint a superintendent or chief of police. It appears from the petition, the facts not being disputed by respondent, that on the first day of May, 1915, there became effective a provision of the freeholders' charter of the city of San Diego creating a police department and providing for a superintendent or chief of police; that it was also provided in said charter that the mayor should appoint such chief of police. It appears that no appointment has been made under the charter provision of an executive head for the police department, and that the respondent mayor has refused to make such appointment. It appears also by allegations in the petition that on the first day of December, 1916, the city council of said city passed a resolution declaring that necessity existed for the appointment of a chief of police, and demanding that the

mayor perform his duty and select some person to fill the office. The resolution further directed the city attorney to institute proceedings to compel the mayor to make the appointment. The city of San Diego and the common council appear as petitioners. It is contended on the part of respondent that these plaintiffs are not entitled to the writ sought, because they have not such a beneficial interest in the subject matter as to make them proper parties under section 1086 of the Code of Civil Procedure. While the functions of the common council are in the main legislative, that body has other duties devolving upon it and, in a qualified sense and subject to the restrictions of the city charter, is the governing arm of the municipality. Where officers of a city charged with the performance of ministerial duties, neglect or refuse to follow the direction of the law under which they have assumed office, it would seem most proper that the city by its common council should be permitted in a proceeding of this kind to compel such officers to fulfill the obligation which their oath has imposed upon them. That this right exists in the city is very clearly held in City of San Buenaventura v. McGuire, 8 Cal. App. 497, [97 Pac. 526, 528]. The statement of the law as contained in that case was approved by the supreme court when a petition to have the matter reheard was denied. In a city of the considerable size of San Diego it must be presumed, irrespective of the very full and affirmative allegations in the petition to that effect, that for the efficient administration of the police department it is necessary that there should be an executive head thereof. The people of the city of San Diego in their charter determined that they would have a chief of police, and made it incumbent upon the mayor as a purely ministerial duty to name someone to fill that office. To say that the mayor may refuse to heed the express mandate of the electors of the city would be to give countenance to a species of executive nullification which the law will not tolerate. When the mayor took his oath, and accepted the office, he bound himself to perform all the duties which the charter imposed upon him. No discretion was left under which he might in the regard here considered supplant the judgment of the people solemnly declared at their charter election, by carrying out a policy which might satisfy his individual notion of what was best to be done in the cir

cumstances. To our minds, this is a most appropriate case for use of the writ sought.

Peremptory writ of mandate is ordered to be issued, the return day to be five days from time of service; petitioners to recover their costs.

Conrey, P. J., and Shaw, J., concurred.

[Civ. No. 1600. Third Appellate District.-January 3, 1917.] R. PLATNAUER, Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY et al., Respondents.

CONTEMPT OF COURT-ATTEMPT OF ATTORNEY AT LAW TO PARTICIPATE IN TRIAL - CONDUCT NOT CONTEMPTUOUS ANNULMENT OF JUDGMENT ON CERTIORARI.-An order adjudging a duly licensed attorney at law guilty of contempt of court for persistently attempting to take part in the proceedings of an election contest on behalf of the person by whom he was regularly employed, after the court had ordered that he should not further participate therein, is in excess of the jurisdiction of the court, and subject to annulment on certiorari.

APPLICATION for a Writ of Certiorari originally made to the District Court of Appeal for the Third Appellate District to annul an order adjudging the petitioner guilty of contempt of court.

The facts are stated in the opinion of the court.

A. M. Seymour, J. S. Daly, and R. Platnauer, for Petitioner.

Meredith, Landis & Chester, for Respondents.

HART, J.-The petitioner was, by the respondents, adjudged guilty of contempt of court, and ordered to suffer punishment therefor by imprisonment in the county jail of the county of Sacramento for the period of one day. Claiming that, in so adjudging him guilty of contempt and so punishing him therefor, the court exceeded its jurisdiction, the petitioner, by this proceeding, asks this court for a writ of