Crozier v. B. F. Nelson Manufacturing Co.

139 N.W. 353, 120 Minn. 524, 1913 Minn. LEXIS 703

• Court: Supreme Court of Minnesota
• Decided: January 17, 1913
• Docket: Nos. 17,829—(182)
• Status: Published

Opinion

Per Curiam.

In this case the defendant moved the court below for an order staying all proceedings therein until plaintiff paid the judgments for costs rendered against him in two actions brought in the municipal court of Minneapolis by plaintiff against this defendant, and for leave to answer within 20 days after such judgments were paid. The motion was denied as to the stay, and defendant appeals.

Plaintiff in this action alleged that on April 17, 1911, he was employed by defendant for one year at a certain salary, payable in monthly instalments; that •on October 1, 1911, he was discharged without cause, and thereafter he was unable to obtain other employment, and asks damages for the loss in wages for the months of October, November, and December, 1911, and for January, February, and March, 1912. The defendant’s showing on the motion was that plaintiff, on November 4, 1911, brought an action in said municipal court against defendant for damages for loss of wages during October, 1911, and subsequently, in January, 1912, another action was brought by plaintiff against defendant in said municipal court for damages for the loss of wages for the months of November and December, 1911. These actions were tried, and resulted in judgment for costs in each case against plaintiff, which are still unpaid. By inference it is made to appear that plaintiff conceived that he was defeated in the municipal court on the ground that the contract came within the statute of frauds, in that it could not be performed in one year from the time it was made on April 15, 1911, as alleged in the complaints in those eases. Now, in the instant case, plaintiff alleges that the contract was made two days later.

Without considering or deciding whether the order is appealable, we conclude that the order must he affirmed on the merits. The court, in an order upon a motion of the character here presented, exercises judicial discretion, and the record does not affirmatively show any abuse of discretion. It is not made to appear that defendant was entitled to a stay as a matter of absolute right. While the existence of a valid contract of employment for one year must be the basis for the damages accruing to plaintiff for each instalment of wages, still the damages, sought in the present action for the months of January, February, and March, 1912, may constitute a separate cause of action from those tried in the municipal court. McMullan v. Dickinson Co. 60 Minn. 156, 62 N. W. 120, 27 L.R.A. 409, 51 Am. St. 511.

The order is affirmed.