Jones

This is an appeal from an order denying a motion to set aside a default and judgment. The appellant contends that the judgment was obtained by fraud, and that the clerk was without jurisdiction to enter the default.

November 29, 1924, the plaintiff served and filed his second amended complaint against the defendant, executor of the estate of Teresa W. Moers, deceased. The complaint was based upon an express agreement to pay plaintiff $5,000 for services rendered as an attorney. It was alleged that “during the lifetime of the said Teresa W. Moers ... he (plaintiff) performed for her, at her special instance and request certain legal services as her attorney at law, for which she promised to pay . . . the sum of $5000.” It was further alleged that a claim for such services was duly presented to the executor of said estate pursuant to section 1496 of the, Code of Civil Procedure, on September 17, 1924, which claim was disallowed: This action was then commenced October 14, 1924. The defendant failed to demur or answer this second amended complaint within the ten days allowed by section 432 of the Code of Civil Procedure. On December 10, 1924, upon written demand, the clerk duly…