Hill, C. J. Pat Walsh was employed by the appellant railroad company as a fireman at $4 per day, and was discharged on November 14, 1906, and sued for $100 unpaid wages and for sixty days’ wages — from November 14th to January 18th- — at $4 per. day, amounting to $240, for failure to pay his wages within seven days of discharge, pursuant to section 6649, Kirby’s Digest. He obtained judgment for $95.85 wages and $240 penalty.
1. The appellant questions the jurisdiction of the circuit court to maintain the action for $100 wages, and says the added $240 claimed is a separate cause of action which should be separately sued for in a different count. In Leep v. St. Louis, I. M. & S. Ry. Co., 58 Ark. 407" date_filed="1894-02-03" court="Ark." case_name="Leep v. Railway Co.">58 Ark. 407, and St. Louis, I. M. & S. Ry. Co. v. Pickett; 70 Ark. 226" date_filed="1902-02-22" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Pickett">70 Ark. 226, the nature of this so-called penalty was discussed, and it was held to be damages — both exemplary and compensatory — and not a penalty, although so nominated in the statute. It is an incident to the amount due for wages, an unearned increment, as it were, and may be added to the claim for wages in determining jurisdiction.
2. On .November 15th Walsh was sued by a creditor, and the railway company garnished. This garnishment was later quashed, but judgment was rendered against him on December 7th, and on December 8th a judicial garnishment was served on the railroad company. On December 29th this garnishment was dismissed. On January 3d Walsh appeared to claim his wages as exempt against the garnishment, and learned it was dismissed. After sixty days expired he brought his suit for wages and for sixty days’ additional wages beginning on date of his discharge. The court found from evidence adduced the facts essential to entitle Walsh to recover the continuing wages after his discharge, and gave judgment accordingly, as well as the amount due at date of his discharge. The appellant seeks to avoid payment of so much of the penalty as accrued while the garnishments were pending. The garnishment before judgment was contrary to section 3695, Kirby’s Digest, and by section 3696 made void and not effective as notice. This court has often given full force to the statute, and there is no reason why it should not, for it is unquestionably a valid exercise of the State’s power.
From December 8th to December 29th there was a valid judicial garnishment pending. This arrested the running of the wages while it existed, and that period must be subtracted from the period sued for.
With this modification the judgment is affirmed.