#### Hunt v. Northern Construction Co.

Opinion delivered June 4, 1917.

1. Wages and penalty — action in justice court — amount recoverable. — Appellant sued appellee in a justice court for wages and penalty; the total amount of same exceeded the jurisdiction of the justice. Held, the bringing of the action before the justice is tantamount to the entering of a remittitur for any sum due in excess of the jurisdiction of the justice, and that on appeal to the circuit court a recovery in excess of $300 could not be recovered, and the judgment of the circuit court extinguishes all sums due appellant in excess of the justice’s jurisdiction.

2. Wages and penalty — payment op wages — separate action for penalty. — Where appellant’s wages are paid, he may maintain a separate action for penalty due under Kirby’s Digest, § 6649.

3. Wages and penalty — appeal from justice court. — The penalty under Kirby’s Digest, § 6649, will continue only to the time of trial in the circuit court, and the entire amount due as wages and penalty are merged in the circuit court judgment.

Appeal from Clay Circuit Court, Western District; W. J. Driver, Judge;

affirmed.

J. L. Taylor, for appellant.

This action was commenced within the sixty days required by law, and the wages continue up to the date of final judgment. 66 Ark. 409. A separate suit can be maintained to recover the wages or penalty.. 70 Ark. 226; 58 Jd. 407. The wages are due every two weeks, and a suit can be brought as a separate cause of action. Kirby & Castle’s Digest, § 5462; 23 Cyc. 444-5 ; 27 L. R. A. 409; 74 Ark. 615; 78 Id. 595; 89 Id. 435; 83 Id. 372.

The effect of the statute is to continue the contract, of employment in full force until the employer pays the .amount due. The “penalty” is so far contractual as to give a justice of the peace jurisdiction. 58 Ark. 407.

Appellant was compelled to sue in justice’s court, as his wages were less than $100 and the first suit was not a merger. The statute gives the right to bring successive suits for each installment. The demurrer was improperly sustained. 4 So. Rep. 426; 38 Am. Rep. 8: 27 L. R. A. 409.

*322 T. J. Crowder, for appellee.

1. Tlie wages and penalty are considered together in determining jurisdiction. 86 Ark. 147. Appellant had the right of election of his forum, and having so elected he can not complain. The two items constitute one cause of action. 86 Ark. 147. He can not split up the liability and bring separate suits. 24 Ark. 177. By suing for a less sum, he waived or remitted the balance. The entire action was merged by the first judgment. 60 Ark. 146; 63 Id. 259; 64 Id. 83, 94; 35 Mich. 431.

2, The demurrer was properly sustained. Cases supra.

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 *323and 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 *324the 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.