Cobb

he defendant was appointed, by the board of supervisors, city justice of the city of San José, on the death of the incumbent, November 12, 1900, and has since continued in occupation of the office. His predecessor had previously been appointed, on the death of the original incumbent, one Gass, and prior to the appointment of defendant, November 22,1900, the board had ordered an election to fill the unexpired term, to be held November 6th of the same year. At this election the relator was elected to the office, and "qualified, but was not permitted to take possession. The suit was brought by the attorney-general to oust the defendant from the office, and also to establish the title of the relator. The decision of the court below was against the defendant and in favor of the relator. Judgment was entered accordingly, and the defendant appeals.

It is contended by the appellant that the case is governed by the provisions of section 111 of the Code of Civil Procedure, and not—as held by the lower court—by the provisions of subdivision 19 of section 25 of the County Government Act of 1897 (Stats. 1897, pp. 452, 463); or if otherwise, that under the latter act there was no vacancy to be…