Wittman

This is an appeal from a judgment denying plaintiff’s petition for a peremptory writ of mandate, commanding the defendants to restore and assign petitioner to duty as captain of police of the city and county of San Francisco.

Defendants pleaded among other things, as a defense to plaintiff’s action, that the same was barred by the provisions of section 338, subdivision 1, of the Code of Civil Procedure. The court made findings of fact in accordance with this contention of defendants, and entered judgment for defendants. It is this finding of the court that presents the only point necessary to be decided upon this appeal.

Appellant was appointed a member of the police department of the city and county of San Francisco in 1885, and subsequently, on the thirty-first day of July, 1895, he was appointed a captain of police of said city and county.

On the twenty-first day of November, 1901, he was regularly appointed chief of police of said city and county.

On the fifteenth day of February, 1905, charges were pre-ferred against him as such chief of police to the board of police commissioners, which were heard and examined by said commissioners, who found him guilty thereof; and…