Johnson v. City of Stillwater

STAET, C. J. Action by plaintiff to recover from the city of Stillwater for services as police officer for two months from May 1 to July 1, 1894, at $60 per month. Cause tried by the court without a jury. Judgment ordered for the plaintiff for amount claimed, and from an order denying its motion for a new trial the city appealed. Appellant’s first assignment of error is that the court erred in not granting its motion to dismiss the action when plaintiff rested, for the reason that the evidence did not establish a cause of action. Conceding the claim, without deciding it, still the case was reopened, and the necessary evidence was supplied. It was not an abuse of discretion on the part of the trial court to permit the case to be reopened. Subdivisions 2 to 5, inclusive, of the court’s findings of fact, are immaterial, and it is therefore immaterial whether or not the court erred in receiving the evidence upon which they were based. This disposes of appellant’s assignments of error, 3, 4, 5, and 6. If the remaining findings of fact are supported by the evidence, they support the conclusion of law of the court, and appellant’s remaining assignments of error are without merit. We are of the opinion that such findings are not so manifestly against the weight of the evidence as to justify us in setting them aside and granting a new trial. That the respondent was appointed upon the police force of the city on April 14, 1891, and his appointment confirmed, cannot well be questioned. Whatever may have been his official [62] relation to the city prior to this time, he was then, by the action of the mayor, appointed on the police force, and designated or detailed by the terms of the appointment as driver of the patrol wagon. It further appears by the evidence of the mayor that the respondent prior to July 1,1894, had not been discharged, and that no successor had been appointed in his place on the police force. The most that can be claimed from the evidence is that be was discharged as patrol driver May 12, 1894, when he reported to the mayor, who directed the chief of police to assign him to a beat, and he continued to do regular police duty until July 1, 1894. The evidence that the respondent qualified by taking and filing his oath of office, and that the city council fixed his pay, is not as satisfactory and clear as it is on the other findings of the court; but it is sufficient,'within the rule we have suggested. Order affirmed.