(dissenting).
I dissent since I believe the complaint contains but conclusions, not facts, so far as the question of defendant’s negligence is concerned. As to the advice given by defendant to plaintiff that she had title to the subject property, I believe he was correct then and now, since the probate court’s decree distributing the property to others than plaintiff, in my opinion was a nullity, the property being no more an asset of the estate in which purportedly it was distributed, than my home. The counter-affidavit of plaintiff contains a series of “ifs” all based on the false premises and implication that if defendant 1) had obtained an abstract of title, 2) if he had consulted his files in the probate and 3) if he had investigated the claims of the quiet title suit against plaintiff, complainants would not have prevailed. This is a non sequitur. How the examination of an abstract, or of previous files, or the investigation of claims of others could have made perfect a title in persons having no title, is difficult to understand.
The plaintiff here says if defendant had appealed, the case would have been reversed. This amounts to an admission that defendant’s advice was correct.
The only issue of fact I can see in this case was precipitated when defendant withdrew from the case, unpaid and under fire, and sharing any attorney-client relationship he then may have had with two other lawyers whom plaintiff theretofore had consulted, — then filing a motion for new trial too late, — but not so late that plaintiff could not have had other counsel perfect an appeal.
I am of the opinion the summary judgment was well taken.