Verry v. Eckel

MARKS, J.

This is an appeal from a judgment ordering L. H. Eckel, as Auditor of the County of Orange, to draw a warrant in favor of Lloyd S. Verry in the sum of $216.66 in settlement of a claim for vacation pay which he had earned but had not taken.

Verry was Deputy District Attorney of Orange County from twelve o’clock noon of January 2, 1939, to twelve o’clock noon on January 2, 1943. It is agreed that Verry had earned a vacation for the year ending on January 2, 1942, and another vacation for the year ending on January 2, 1943, under the provisions of Ordinance 430 of the County of Orange as amended by Ordinances 440 and 446, neither of which vacations had been taken.

[596]

Under date of December 31, 1942, Verry submitted the following resignation:

“I, the undersigned, do hereby submit my resignation as a Deputy District Attorney of Orange County, California, effective as of 12 noon, Saturday, January 2, 1943.

“As you will recall, I have heretofore made application to you for vacation leave as provided by law, but did not receive the same because of the increased burdens placed upon your office during the past year. Therefore, I hereby request that you grant to me the privileges provided in subdivision (b) of Section 8 of Ordinance 446, of the County of Orange, State of California.”

The resignation was accepted and the district attorney prepared his payroll which carried pay for Verry for 15 working days, the legal annual vacation period fixed by the ordinance of the county. The county auditor refused to draw his warrant for the vacation pay and this action was brought to compel him to do so. Verry recovered judgment and this appeal followed.

The cause is before us on the judgment roll and a stipulation as to certain facts which was made at the opening of the argument here. Prom all that appears in the record it might be concluded that Verry, having worked during the year ending on January 2, 1943, without vacation, was asking for vacation pay for the vacation earned that year. However, it was stipulated by counsel at the argument that Verry was asking for vacation pay earned during the year ending on January 2, 1942, he having been refused a vacation during the year 1942 because of the press of business in the office; that the vacation earned during the year 1942, prior to his resignation, was not involved in this proceeding. We consider this stipulation as controlling and as clearing up any uncertainty in the record.