ON MOTION ROE REHEARING.,
The motion for rehearing and the brief filed by the plaintiff in error in support of the motion are identical with those filed in Mayor &c. of Butler v. Hortman, supra. In his original brief filed in this case, counsel for the plaintiff in error stated: “The issues involved in this case and No. 30359, between the same parties, are identical with two minor exceptions, and for the argument and citation of authorities-.on the questions involved the court is respectfully referred to brief filed in ease No: 30359. The first differences is that while in No. 30359 the .action .was. for $50 for salary for the month of June, 1943, in -this case the action was for $100 for salary for the months of July and August, 1943. The second difference- is that the record shows- in this case that the mayor and council, sought to abolish -the office held by the defendant in-error on August-3, 1943;-it being contended'-by plaintiff in error th§,t the office was a creation of th,e plaintiff -in error and that it wks within its power to abolish -the same at its pleasure.”
In its motion for, a rehearing, the- plaintiff in error now. contends that the evidence demanded a finding that the plaintiff Avas employed as a policeman under the -provisions of section 44 of the city charter, which provides in part: “Be it,further enacted that said mayor and council of the City of Butler shall have power and authority . . to enforce law, peace, and order in said city, and for this purpose to appoint, when necessary, a police force sufficient to assist the city marshal; to fix their terms of service and compensation, to require bonds from them when deemed necessary, conditioned for the faithful performance of their duties.”
There was. sufficient evidence to support the finding of the trial judge that the plaintiff was elected to the office of marshal, or deputy marshal, under the provisions of section 14 of the city charter.. While the ordinance or resolution of February 2, 1943, “retaining” the plaintiff in his position with the city, referred to *859him as a “policeman,” the other ordinance or resolution passed on the same day, which purported to terminate his employment with the city, referred to him as the “day marshal” and as the “city marshal,” and the ordinance purporting to abolish the office held by the plaintiff and relied upon in this case, provided in part, “and to make the matter entirely clear, it is ordained . . that the office of marshal occupied by G. J. Hortman prior to June 1, 1943, is specifically abolished.” The mayor and one of the aider-men testified at the trial; and nowhere in .their evidence was there any contention that the plaintiff was employed as a policeman, but their testimony related entirely to the office of marshal of the defendant city.
The plaintiff sued to recover his salary as city marshal, and in answer to the suit the city did not deny that he had been an- officer of the city, but for plea and answer alleged “that it is not indebted as alleged in said summons, nor in any other form or manner whatever, and of this [it] puts itself upon the country.”
The casé was appealed to the-;siipérior court and.was there -tried before .the judge without the intervention of a jury; and it is-well-established law" that where a jury is waived and the case is submitted to a trial judge', his findings as to the facts are conclusive upon this court where supported by evidence. There -was evidence to support -the judgment in. favor of the plaintiff, and that judgment upon the facts will not be interfered with by this court.
There-was nothing in-the pleadings or the evidence to indicate any contention on the’ part- of .the defendant that the plaintiff was employed as a policeman under the provisions of section 44 of the city charter, and the assignments of - error in the bill of- exceptions refer to and deal with section 14, and not with section 44, of the charter.
The issues raised by the pleadings and the evidence have been carefully considered, and we are of the opinion that the decision rendered is correct. Therefore the motion for rehearing is denied.