Hunt v. Northern Construction Co.

Wood, J. The appellant alleged that the appellee was a corporation; that he was in its employ on the 28th of May, 1915; that on that date the appellee was indebted to him in the sum of $58.19 upon account for wages; that the account at that time was due and unpaid, and that appellee had refused to pay the same, although .at various times it was requested to do so. Appellant al-. leged that he was employed at a wage of $125 per month; that the appellee on the 28th day of May, 1915, discharged him and at that time the appellant requested of the appellee the money or a valid check for his wages; that the appellee refused to pay appellant, and on the 20th day of July, 1915, within sixtv davs after he was discharged he filed suit in a justice court for the amount of his wages and the penalty that had then accrued and recovered judgment for the sum of $54.04 before the justice; that the appellee appealed from the judgment to the circuit court; that the cause was tried in the circuit court on tlie 19th of January, 1916, and judgment rendered in that court for the sum of $58.19, his wages, and the sum of $300 for the amount of the penalty that had accrued from the 28th day of May up to and including the 9th day of August, 1915; that there is now due the appellant from the appellee for penalty for failure to pay the wages from the 9th day of August, 1915, up to and including the 19th day of January, 1916, at the rate of $125.00 per month, totaling $662.50, for which sum appellant prayed judgment with six per cent, interest. The appellee filed a general demurrer to the complaint, which was sustained, and the appellant refusing to plead further, a judgment was entered dismissing tñe complaint, and this appeal follows. The allegations of the complaint show that the action was one grounded on section 6649 of Kirby’s Digest, which requires that the wages earned by servants and employees of corporations are due and payable on the day such servants or employees may be discharged. The act requires that such wages “shall not continue more than sixty days unless an action therefor is commenced within that time.” If such wages are not paid within seven days after such discharge and demand has been made for payment, then the wages continue as a penalty until paid, at the same rate. Under the statute the penalty is an incident to the amount due for wages and may be added to the wages due in determining jurisdiction. St. Louis, I. M. & S. Ry. Co. v. Walsh, 86 Ark. 147-49. (1) At the time appellant instituted his suit in the justice court the amount of the wages and accrued penalty together was sufficient to give jurisdiction also to the circuit court. But appellant elected to bring his suit in the justice court, and he is, therefore, limited in the amount which he could recover to the jurisdiction of that) court. The bringing of his suit in the justice, court was tantamount to a remittitur by appellant .of the sum due him as a penalty, in excess of three hundred dollars, and after the judgment of the justice was rendered to the full amount of the jurisdiction of the justice, in appellant’s favor, including the penalty that had accrued at the time, such judgment became final on the trial anew in the circuit court, and appellant could not thereafter bring a separate suit for the balance of the penalty that might then have been recovered had appellant elected to bring his suit originally in the circuit court. The trial anew in the circuit court on appeal was but the same cause of action that had been tried by the justice court, and the judgment of that court completely extinguished all sums due appellant in excess of the justice’s jurisdiction. Hunton v. Luce, 60 Ark. 146, 150. (2-3) The penalty could only continue to the time of the trial in the circuit court, and the entire amount due appellant for his wages and the penalty was merged-in that judgment. St. Louis, I. M. & S. Ry. Co. v. Paul, 64 Ark. 83. If appellant’s wages had been paid, but the penalty also due him had not been paid, then appellant could have maintained a separate action for the penalty. St. Louis, I. M. & S. Ry. Co. v. Pickett, 70 Ark. 226. But appellant could not split up his cause of action for a penalty and bring separate suits for same. When he sued for his wages and the penalty incident thereto bef ore the justice, this barred his right of action in any other suit for the penalty. The judgment is therefore correct and it is affirmed.