(Italics supplied.) 7. Plaintiff argues that under Rule 60.02 of Rules of Civil Procedure the trial court should have relieved him from the effects of his mistake in failing to appear at the February 1954 term since it was the result of his reliance on erroneous advice of counsel, citing Davenport v. Sackett, 206 Minn. 69, 288 N.W. 167; Duenow v. Lindeman, 223 Minn. 505, 27 N.W.2d 421. Under Rule 60.02 determination of questions such as this is left to the trial court's discretion with inquiry here as usual being limited to ascertainment of whether such discretion was abused.

A litigant is not to be penalized for the neglect or mistakes of his lawyer. Courts will relieve parties from the consequences of the neglect or mistakes of their attorney, when it can be done without substantial prejudice to their adversaries. Davenport v. Sackett, 206 Minn. 69, 288 N.W. 167; Kennedy v. Torodor, 201 Minn. 422, 276 N.W. 650. This is such a case. Under the circumstances, defendants should not be precluded from being heard in their defense.

No one can doubt that a discharge in bankruptcy presents a meritorious defense. So, even if defendant may have had an erroneous impression as to the effect of the adjudication against him, that alone should not bar relief. Cf. Davenport v. Sackett, 206 Minn. 69, 71, 288 N.W. 167. That defendant has shown reasonable diligence after learning of the entry of the judgment is clear. If his answer and supporting affidavit had alleged payment of the debt as of the time of his discharge, certainly his prayer for relief would have been granted freely. Since the discharge in bankruptcy affects defendant's personal obligation to the same extent, it is difficult to assign any sound reason why the relief here sought should not be granted. Cf. Orth v. Hagedorn, 185 Minn. 582, 586, 242 N.W. 292.

The first was that a mistake of law does not furnish a ground for relief. This, of course, is contrary to our decisions. Baxter v. Chute, 50 Minn. 164, 52 N.W. 379, 36 A.S.R. 633; Davenport v. Sackett, 206 Minn. 69, 288 N.W. 167. The other premise has been disposed of during the course of this opinion. Since this part of the controversy was never actually passed upon below, even assuming error were assigned, there is nothing here to review.