Castagnoli v. Castagnoli

FINLEY, J. pro tem.

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This appeal is by plaintiff Louis Castagnoli from an order setting aside the default of defendant Lorraine Castagnoli and the judgment entered thereon. The other defendant, John Castagnoli, is not a

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party to the appeal. The only question for decision is whether the trial court had the power to set aside the default after six months from the time respondent’s default was entered.

From the complaint it appears that defendants are husband and wife; that plaintiff loaned John Castagnoli $5,114.87 as a deposit on a home to be purchased by said defendant. The alleged understanding was that this sum was to be repaid in the event the home was sold, otherwise it was to be repaid upon satisfaction of a deed of trust obligation on the home owing to the Bank of America. The complaint goes on. to state that after the loan was originally made defendant John Castagnoli undertook to convey this real property to the joint names of himself and his wife, Lorraine Castagnoli, who was aware of the terms of the loan and orally agreed to abide by them; that defendants sold the property and the proceeds are in the hands of a real estate broker who is holding them in escrow subject to instructions of defendants; that demand was made upon defendants to repay the loan with interest but that they have failed and refused to do so.

It appears from the briefs but not from the record that appellant is the father of respondent John Castagnoli; that the loan was made to John before his marriage to Lorraine; that during the marriage John placed title to the property in both his and his wife’s name; that thereafter Lorraine filed for divorce and pursuant to an agreement between John and Lorraine the property was sold and the money placed in escrow subject to disposition upon the court’s order in the divorce action which was still pending at the time this action was filed and apparently at the time judgment herein was entered.

Further, the judgment herein recited that defendant John Castagnoli appeared and filed “his Notice and Waiver of Appearance,” and submitted himself to the jurisdiction of the court and stipulated that a default might be entered against him.

From the clerk’s transcript it appears that the complaint was filed and summons issued on October 22, 1951. Summons was served upon respondent Lorraine Castagnoli in the city and county of San Francisco on October 26, 1951, and from the augmented record it appears that her default was entered in January, 1952. Judgment by default was made and entered on August 14, 1952, and notice of motion to