83 Iowa 215 | Iowa | 1891
The instrument in question was contested on the ground that the decedent was mentally incompetent to make it, and on the further ground that it was executed in consequence of undue influence exerted upon the .decedent by the proponent, and other persons confederated with her. On the trial in the district court George Hubbell acted as attorney for the proponent. After the verdict-was returned, Hubbell
‘ ‘First, that proponent never consented to a with■drawal of her motion for a new trial; second, that said motion was withdrawn without her understanding the effect of the same, or consenting thereto; third, that she never consented to the entry of judgment on the verdict of the jury, on the payment of her costs and •■attorney’s fees; fourth, that she never consented to any action that would bar her. rights to prosecute in any ••court the proving of said will; fifth, that the grounds of the motion for a new trial were and are deemed good in law and justice by her; sixth, that proponent’s ignorance of the English language has debarred her from .properly watching and protecting her rights in conducting her cause, and understanding the suggestions of her*218 counsel, if such are made; seventh, that proponent has discovered material evidence that she can obtain on a retrial of said cause, and which was not offered and could not be obtained on a former trial.”
The application was supported by- affidavits and resisted by counter-affidavits, and was overruled.
It is contended by the appellant that Hubbell had no authority to withdraw her motion for a new trial,, and waive her right of appeal. She made an affidavit-in support of her application to have set aside the judgment, in which she states, in substance, that she does-not understand the English language well, and thatHubbell used no other; that he at all times informed, her that she had a meritorious case, and that the will was valid; that, after the verdict was returned, she-talked with the partner of Hubbell, and was assured, by him that an appeal to this court would be taken; that she afterwards saw Hubbell, who asked her if she-had two hundred dollars with which to take an appeal;. that she did not have the money, and was told by Hubbell that nothing could be done; that she was-never consulted as to the advisability of dropping the case, nor about filing a motion for attorney’s fees and costs; and never released her attorney from his duty to-.protect her rights. Other affidavits filed in support of the application relate to evidence alleged to be newly discovered, and to the probable result of another trial.. It is sufficient to say of these that they show no diligence to obtain the evidence to which they refer, and we do not understand that anything is claimed for them in this court. In resistance of the application, the affidavits of Hubbell and of an attorney for contestants were filed. They show that Hubbell became-satisfied that the motion for a new trial would not be-sustained, and thaf no relief could be obtained by appealing to this court; that he had an interview with, the proponent, in which he told her that no question.
It is claimed that the rule contended for by the-