(dissenting).
It is to be borne in mind that this review is of a summary judgment in favor of the defendant, which is a drastic measure that abruptly shuts off the plaintiff’s attempt to seek redress; and which the courts are and should be reluctant to invoke. It is properly granted only when it appears that even if the claims of the plaintiff are true, she can establish no right to recover. When it is granted, the claims she makes, and every reasonable inference to be drawn therefrom, must be viewed in the light most favorable to her. That is the manner in which we should review the record before' us.
I do not disagree with the proposition that under usual circumstances, where an attorney has represented a plaintiff in a trial and the case has been lost, that might fulfill his duty and terminate the relationship of attorney and client. But in this *335case there are circumstances which may be found to make a substantial difference if the case is tried.
Both Mrs. Lundberg and Mr. Backman thought the judgment was wrong and were dissatisfied with it. In her complaint and affidavits filed in support thereof, Mrs. Lundberg makes the following representations : that she advised Mr. Backman that she desired to take an appeal and that he knew that she was relying on him as an attorney to advise her in connection therewith ; that he did not advise her of the date the judgment was filed, nor of the time within which an appeal would have to be taken.
In her first affidavit she also states that the defendant (Mr. Backman) “ * * * informed your affiant that an appeal could not be filed with the Supreme Court * * *»
In her second affidavit she makes a similar averment stating that he “ * * * advised plaintiff it would be impossible to appeal the case because Judge Van Cott was mad and requested plaintiff to contact him [Mr. Backman] within a few days to discuss the matter * * * ”; that he did not advise her as to the filing of a motion for a new trial; nor that the same had been denied because it was not filed on time; and that he told her he had withdrawn from the case, when he had not in fact done so, which she avers prevented her from having another attorney act on her behalf.
I fail to see in Mr. Backman’s answer and his affidavit a direct denial of most of the foregoing charges. He appears to rely upon the defense that, “he was not retained by plaintiff to take an appeal from the judgment entered by the district court” and that he had not agreed to do so. He states that he “withdrew from representing the said Agnes Lundberg on December 1, 1954.” The latter fact is denied by Mrs. Lundberg in her affidavit. Thus there is diametrical dispute about that as well as other material matters. Viewed according to the plaintiff’s averments, these must be regarded as the facts: Mr. Backman did not withdraw as her attorney until after the time for appeal had elapsed; he knew that she desired to take an appeal and that she was looking to him as her attorney to advise her in that regard; that nevertheless he failed to advise her as to any of the matters above referred to, vital to the protection of her rights; that although he claims to have withdrawn as her attorney in time for her to get other counsel and take an appeal, his contention is disputed, not only by her positive averment to the contrary, but by the following facts which are of record and indisputable: that his notice of withdrawal was not filed until January 24, 1955, long *336after the time for taking an appeal had run; and also, notwithstanding his contention that he had withdrawn and no longer represented the plaintiff, he filed a motion for a new trial on her behalf which was filed too late.
How the dispute between these parties may be resolved by a court or jury, and whether Mrs. Lundberg could prove her charges, or that she had suffered damages, is not now pertinent. Taking the facts as claimed by Mrs. Lundberg to be true, I do not see how the conclusion can be escaped that issues of fact are raised as to whether the defendant used due care in performing the duties reasonably to be expected of an attorney under these circumstances. This is particularly so if the status and position of the parties in relation to each other is kept in mind. Mr. Backman was a professional man to whom the plaintiff could look as having knowledge of the law and the skill and competence to handle her case, whereas she was a layman presumably without knowledge of such matters.
For the reasons hereinabove set forth it is my opinion that the issues in dispute between the parties should be tried and the facts determined.
McDONOUGH, J., concurs with the dissenting opinion of CROCKETT, J.