brought Beau de Zart refused payment of the note and demanded a return of the stock with the money he had paid on it. Demand is not required when it appears that it would have been unavailing. In addition to this, plaintiff testifies that he did make a demand.

There is in the record a point sought to be made with relation to the regularity of an assignment of the note by plaintiff to one Wagy and by Wagy back to plaintiff. There is sufficient in the record to warrant the finding of the court that such assignments were made, and that plaintiff was the holder and owner of the note at the time suit was brought.

There was no error in the court rendering judgment for interest.. (O'Neil v. Magner, 81 Cal. 631, [15 Am. St. Rep. 88, 22 Pac. 876].)

We see no prejudicial error in the record, and the judgment and order are affirmed.

Taggart, J., and Shaw, J., concurred.

[Civ. No. 708. First Appellate District.-March 17, 1910.] WM. M. AYDELOTTE, Respondent, v. I. T. BLOOM, Appellant.

ACTION FOR LEGAL SERVICES-CONFLICT OF EVIDENCE-SUPPORT OF VERDICT. In an action for legal services, where the testimony of the plaintiff is corroborated, and there is conflicting evidence for the defendant, the verdict for the plaintiff is sufficiently sustained, and this court will not interfere therewith.

ID.-PLEADING REASONABLE VALUE OF SERVICES-EVIDENCE OF RETAINING FEE.-Under a general complaint to recover the reasonable value of plaintiff's services as an attorney at law, evidence is admissible, without special pleading thereof, to prove the amount of a reasonable retaining fee.

ID. RETAINER PART OF CAUSE OF ACTION.-Where an action is brought to recover the value of an attorney's services, the retainer, if not paid, constitutes part of the plaintiff's cause of action; and it is not necessary to set forth the items of the account in the complaint. It is sufficient to state the facts constituting the cause of action in ordinary and concise language.

ID.-BILL OF PARTICULARS.-Where, upon a demand for a bill of particulars, one was furnished setting forth detailed items for disbursements, and one lumping charge for the whole of the legal services, and no further bill of particulars was demanded, it was competent in proving the value of the services to prove the amount of a reasonable retaining fee.

APPEAL from an order of the Cruz County, denying a new trial.

Superior Court of Santa
Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

Hugh R. Osborn, for Appellant.

Wm. M. Aydelotte, and A. H. Jarman, for Respondent.

KERRIGAN, J.-This is an action to recover the reasonable value of services rendered as an attorney at law. The case was tried with a jury, and in accordance with its verdict a judgment was entered in favor of the plaintiff and against the defendant for the sum of $600. This appeal is from an order denying defendant's motion for a new trial.

The evidence upon both sides presented has been read and considered. Very briefly the facts are as follows: The plaintiff testified that he rendered the defendant certain services as an attorney at law; that the reasonable compensation for such services was $1,000. He rendered a bill, however, for $750, and sued for this amount. His testimony as to the services rendered and as to their value was corroborated. The defendant did not dispute that the plaintiff had rendered the services, but claimed that they were performed, not as an attorney at law but as an expert bookkeeper, and that they were not so extensive as claimed by plaintiff, and that the reasonable value of the same was $265, and introduced evidence to that effect.

It thus appears that there is a conflict in the evidence; and as there is evidence to sustain the verdict of the jury, this court, as has been repeatedly held, will not interfere. (Berger v. Horlock, 10 Cal. 352, [101 Pac. 918]; Ernest v. McAuley, 155 Cal. 739, [102 Pac. 924].) In the case of Long v. Saufley, 89 Cal. 437, [26 Pac. 902], it was said: "This court has repeatedly held that the decision of the trial court upon conflicting evidence is conclusive, and that when that court upon a

motion for a new trial has refused to set aside such decision, this court will not reverse or even review its action."

One of plaintiff's witnesses, an attorney at law, in testifying as to what in his opinion plaintiff's services were reasonably worth, said: "I should say he should be entitled to a retainer of $500, and his services should be worth in addition to that from $700 or $750 to $1,000. I should say that he should have $1,250 for those services including the retainer." Defendant objected to that part of the answer referring to the retainer, and now claims that as the plaintiff did not sue for or demand a retainer the testimony was erroneously admitted. It is true that the plaintiff does not in his complaint in terms mention a retaining fee, but merely alleges that the amount sought to be recovered is the reasonable value of the services rendered; but it has been decided that upon such an allegation an attorney may in proving such value include therein the amount of a reasonable retaining fee. (Knight v. Russ, 77 Cal. 410, [19 Pac. 698]; Roche v. Baldwin, 143 Cal. 186, [76 Pac. 956].) In the former case the court said: "When an action is brought to recover the value of an attorney's services the retainer, it not having been paid, constitutes a part of the plaintiff's cause of action, but it is not necessary to set forth the items of the account in the complaint. It is sufficient to state the facts constituting the cause of action in ordinary and concise language, and if the defendant desires further particulars, he may call for them, and they must be given to him. within a reasonable time. (Code Civ. Proc., secs. 426, 454.) At the trial, if an issue has been tendered as to the value of the services, their value must be proved, and that will include the value of the retainer." In the case at bar, on the demand of defendant a bill of particulars was furnished, which included various items of disbursements, and one item detailing the various services rendered, and making one lumping charge for the whole of those services. No further bill of particulars was called for. It was in proving the value of the services. detailed in this last-mentioned item that the testimony was received as to the amount of a reasonable retaining fee; and we think, under the authority of the two cases last cited, that the evidence was properly received.

The order appealed from is affirmed.

Hall, J., and Cooper, P. J., concurred.

[Civ. No. 750. First Appellate District.-March 17, 1910.] GEORGE FRANK COMPANY, a Corporation, Appellant, v. LEOPOLD & FERRON COMPANY, a Corporation, Respondent.

JUDGMENT AGAINST FOREIGN CORPORATION-VOID SERVICE OF SUMMONS ON SECRETARY OF STATE-VACATION WITHIN REASONABLE TIME.— The service of summons against a foreign corporation not doing business in this state cannot be made upon the Secretary of State, and a judgment against it by default, based upon such service, is void in fact, for want of jurisdiction over the person of the defendant, and may be vacated upon affidavit showing the facts within a reasonable time after the entry of the judgment. ID.-JUDGMENT VOID IN FACT-WANT OF JURISDICTION OF PERSONREASONABLE TIME NOT LIMITED BY CODE.-A motion to vacate a judgment not void upon the face of the judgment-roll, but void in fact only for want of jurisdiction of the person of the defendant, is not limited as to a reasonable time within which to notice the same, by the terms of section 473 of the Code of Civil Procedure. The right to have a void judgment vacated exists independent of, and outside of, any statutory provision.

ID. LIMIT OF TIME TO BE DETERMINED BY TRIAL COURT.-While the court may vacate a judgment void upon its face at any time, and can only vacate a judgment merely void in fact, for want of jurisdiction over the defendant, within a reasonable time, yet the limit of such reasonable time, in the absence of a statutory provision, should be largely left to the determination of the trial court.

ID. NOTICE SPECIFYING ENTRY OF JUDGMENT-SIX MONTHS - PRESUMPTION-BURDEN OF PROOF.-Where the notice of the motion to vacate the judgment specified its entry within six months prior thereto, and the record shows nothing to the contrary, it must be presumed against the appellant, upon whom the burden of showing error lies, and in support of the order vacating the judg ment, that the entry of the judgment was within six months preceding such notice.

ID. RENDITION OF JUDGMENT-LAPSE OF SIX MONTHS AND ONE DAY -POWER OF COURT.-Where the judgment by default was rendered against the defendant by the judge signing the same, and the filing thereof with the clerk six months and one day prior to the notice of motion to vacate the judgment, as being void in fact, it cannot be held that such lapse of time after the rendition of the judgment, as distinguished from its entry, was unreasonable, or that the court had no power, under such circum

stances, to vacate such judgment, upon proof dehors the record, that the court never obtained jurisdiction over the defendant.

APPEAL from an order of the Superior Court of Santa Clara County, vacating a judgment by default. J. R. Welch, Judge.

The facts are stated in the opinion of the court.

Will M. Beggs, J. S. Partridge, and R. C. McComish, for Appellant.

Campbell, Metson, Drew, Oatman & Mackenzie, for Respondent.

HALL, J.—This is an appeal from an order vacating and setting aside a default judgment entered against defendant as damages for an unlawful and malicious attachment.

The action is purely a personal one, and was brought in October, 1906. The defendant is a foreign corporation, organized and existing under the laws of the state of Illinois. It had never filed in the office of the Secretary of State of this state a copy of its articles of incorporation, or a designation of an agent upon whom process might be served, as is required by the statute of this state of all foreign corporations doing business in the state. (Civ. Code, secs. 405, 408.)

Service of summons was made upon defendant by serving a copy of the summons and complaint upon the Secretary of State.

Upon the sixteenth day of November, 1906, a judgment, upon default, against defendant for the sum of $25,000 was signed by the judge of the court and filed with the clerk. On the seventeenth day of May, 1907, just six months and one day after the rendition of the judgment, the defendant specially appeared in the action for the purpose of its motion only, and gave and filed a notice of motion to vacate and set aside said judgment upon the ground that the court never obtained jurisdiction of the defendant, in that no service of summons, as required by law, had been made on defendant, and that it had never appeared in said action or submitted itself to the jurisdiction of the court. Upon the hearing the court granted the motion, and it is from this order that the plaintiff has appealed. At the hearing the court