Edison v. Mills

20 Ga. App. 404 | Ga. Ct. App. | 1917

George, J.

(After stating the foregoing facts.)

1. Counsel for the defendant moved the court to dismiss the writ of error on the main bill of exceptions, upon substantially the same grounds as urged in its cross-bill of exceptions.' In view of the ruling of this court on a former writ of error in this case (18 Ga. App. 460, 89 S. E. 536), the motion to dismiss the main bill of exceptions is denied. The third headnote in the case of Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047), is also in point. We quote it: “If the'-ruling or decision complained of as erroneous is One preceding the final judgment, and if it is specifically made the subject of exception and of proper assignment of error, and the final judgment is excepted to, not because of additional error in it, but because of the antecedent ruling complained of, which entered into and affected the further progress or final result of the case, a general exception to the final judgment and an exception to and a specific assignment of error on the antecedent ruling will suffice, relatively to the point now under consideration, to give the reviewing court jurisdiction.” It was the duty of the trial court to give effect to the ruling of 'this court, made in this case; and this, we understand from the record, the learned trial judge undertook to do by entering a final judgment in favor of the defendant in the lower court, on September 15, 1916. These observations dispose not only of the motion to dismiss, but of the question presented by the cross-bill of exceptions.

2. Whatever may be the rule -in other jurisdictions, the law of this case is controlled by the decision in Moore v. Kelly & Jones Co., 111 Ga. 371 (36 S. E. 802), and cases there cited. In that case it was ruled: “If the contract of employment was for one year at a stipulated salarjq payable monthly, and the employer wrongfully discharged the employee, the latter can bring his action at the expiration of each month for the amount of his salary for that month, there being a partial breach iof the contract each time the monthly salary is refused.” In Blum v. Holitzer, 53 Ga. 82, it was said: “Where the plaintiff was employed for one year, at a stipulated sum per month, but was discharged before the expiration of his term, and thereupon sued and obtained a judgment for the amount due up to the time of such discharge, he is not thereby estopped from instituting proceedings to recover the balance due him for the remaining portion of the year.” In Isaacs v. Davies, 68 Ga. 169, it was held: “If a servant be employed for five months at a specified rate per month, payable monthly, and pending the employment he be wrongfully discharged, he may, in his option, sue at the end of each month, and a recovery for one month will be no bar to a suit at the end of the next month.” We fully appreciate the reasoning upon which a contrary rule, announced in many jurisdictions, is based; but the foregoing decisions of the Supreme Court are binding upon this court. The declarations as amended, in both the first and second attachment suits, plainly and distinctly declared upon the contract of employment. The breach of the contract is in each suit alleged; and, fairly interpreted, the damages claimed in each case represented only that portion of the compensation which the plaintiff would have earned during a specified period under the contract had he been allowed to perform the contract. Aside from the merits of the plea of estoppel urged by the plaintiff to the plea in bar filed by the defendant (and the defendant was certainly estopped, by its position of record, to plead the recovery in the first suit in bar of the present suit, under' the laws of this State and the State of Illinois), the pleadings, verdict, judgment, affirmance of the verdict and judgment, and the payment of the same, in the first ease, constituted no bar to the cause of action alleged in this, the second, suit. Since the court erred in overruling'the objections urged by the plaintiff to the plea in bar filed by the defendant, and likewise erred in refusing to entertain the plea of estoppel interposed to defendant’s plea in bar, all subsequent proceedings were nugatory. The final judgment, or the judgment which this court considered the necessary final judgment in the case, was 'duly excepted to, not for inherent error'therein, bnt for matters antecedent to it, and which necessarily entered into, affected, and controlled the further progress and final disposition of the case. The plaintiff preserved his right, by timely exceptions, to urge his objections to these antecedent rulings of the court; and we have concluded that his contentions are good.

Judgment reversed on main hill of exceptions, and affirmed on cross-hill.

Wade, C. J., and Lulce, J., concur. ■