190 Iowa 684 | Iowa | 1921
‘ ‘ I have never been Mr. Hall’s lawyer in any matter. Mr. Hall did not employ me at that first interview. He said: ‘Are you at the present time employed by the Lathrop boys in the Gladys Lathrop will contestV I said: ‘Up to the present time,
The climax of all the foregoing evidence is in the last sentence. The claim for it is that it amounts to an admission of guilt. Magruder also testified as follows:
“I asked Mr. Hall if he had considered the fact that an engagement between him and Gladys Lathrop, the deceased, would show a consideration for the gift. He answered that he had considered that phase of the matter, and that there was no engagement between them. I said: ‘I understand there was some letters passed between you and Miss Lathrop, after she went to Saginaw, Michigan. Wasn’t there something mentioned in those letters showing that you and she were engaged?’ ”
The employment of an attorney by a client, where there is prior mutual acquaintance, is often not a very formal affair. Employment and consultation are often quite concurrent. The ethics of the profession will not permit an attorney’s office to become a trap for a litigant who is unconscious of the formal rules which hedge the honor of an attorney. The questions put by the attorney in this ease to his proposed client indicate his own state of mind, and that he was actually carrying on a consultation and giving advice. He could not have intended the proposed client to understand anything else. He advised the client that he was open to employment, and the client advised him that he wanted to employ him. A question was raised as to whether his employment would be satisfactory to other eoun
To say nothing now of the repugnance of this evidence to professional ethics and to statutory morals, and to overlook the fact that the objection to it should have been sustained, and to say nothing even of the fact that an admission of one legatee is not binding upon the other legatees, we are united in the view that the evidence itself is too shadowy and unsubstantial to justify a jury in overturning the will thereon. It is a mere expression of an apprehension of the kind of testimony which contestants might produce. It did not purport to be an admission of the fact itself. The most that can be said for the evidence is that it was a scintilla. We are united in the view, also, that the communication thus testified to was confidential and privileged, under the statute. If, therefore, we were to deem the evidence sufficient to have sustained a verdict, we could not properly reverse, and send the ease back for retrial. We are firmly of the conclusion that the trial court properly directed the verdict.
II. At the close of the contestants’ evidence, the proponents moved for a directed verdict. This motion was argued and submitted. The court having announced its view adverse to the contestants, they immediately asked to dismiss. This request was denied. A formal verdict was submitted to the jury, and signed by one of their number. Complaint is directed against this ruling of the court, in refusing to the contestants the right of dismissal.
The contestants were not in the attitude of plaintiffs, within the meaning of the statute. Plaintiffs may dismiss their action. The contestants had no action. They were defending. True, they set up an affirmative defense. Perhaps they were entitled to withdraw their defense. That, however, would be quite immaterial. That is not what they asked to do. Their announcement to the court was: “The case may be dismissed.”