The basic issue is whether the trial court committed error in refusing to exercise its discretion to relieve the appellant from the order of September 14, 1959. Sec. 269.46 (1), Stats., provides a court may within one year after notice thereof relieve a party from a judgment, order, stipulation, or other proceeding obtained against him through his mistake, inadvertence, surprise, or excusable neglect. The appellant contends the failure of his attorney to take the steps necessary to protect his interest in the surplus funds constituted excusable neglect on his part because he acted as a reasonable, prudent person in engaging an attorney of good reputation, made responsible inquiry concerning the proceedings, and relied on his attorney’s advice. The trial court took the position that the facts did not constitute neglect but a mistake, and while the plaintiff personally made no mistake, his counsel made one of law and such a mistake was not a basis upon which the court could exercise its discretion.
A distinction should be observed between a mistake of law as a prerequisite to the existence of the power to exercise discretion and as a reason for denying or granting relief in the exercise of that discretion. Most of the cases relied upon by the respondent go to the question of discretion, not of power. In
Carmichael v. Argard
(1881),
Plumbers Woodwork Co. v. Merchants Credit & Adjustment Bureau
(1929),
“The word ‘mistake’ used in the statute as indicating one ground of application does not apply to a mistake of law.”
*421 It is plain the defendant was advised of his rights by the court and in disregard thereof entered into a stipulation. The case did not involve a mistake of law.
The statement of the rule that a mistake of law is not within the contemplation of sec. 269.46 (1), Stats., is too broad and absolute applied either to the existence of the power of the trial court or to the exercise of its discretion. Sec. 269.46 (1) is a remedial statute which dates back to ch. 125, sec. 38, R. S. 1858, and should be liberally construed.
Kennedy v. Waugh
(1868),
In equity, the modern trend of judicial opinion is toward liberalizing the general rule that equity does not relieve from mistakes of law. 3 Pomeroy, Eq. Jur. (5th ed.), p. 323, sec. 851b. From an early date, this court has held that ill advice or advice based on a mistake of law by an attorney is grounds for relief in equity.
Wicke v. Lake
(1867),
“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.”
Sec. 269.46 (1), Stats., does not expressly provide what kind of a mistake the court may relieve from and, to fulfil its equitable purpose, should not be restricted to mistakes of fact. The trial court was obviously misled by the broad statements in the decisions of this court previously cited. We hold now that a mistake of law does not prevent the court from exercising its discretion under sec. 269.46 (1), and the nature of such a mistake is properly to be considered with the other facts in determining whether relief ought or ought not to be granted. Since the trial court had the power to exercise its discretion, it was an error of law not to do so and calls for reversal regardless of what the result of such exercise might have been.
Hart v. Godkin
(1904),
The argument of appellant goes beyond the question of mistake of law. He contends sec. 269.46 (1), Stats., refers to him and not his attorney and, therefore, the conduct of his counsel is not to be imputed to him. He argues his reliance on his attorney constitutes excusable neglect. There *423 is authority for the rule that the ill advice, the mistake of law, or the failure on the part of an attorney, may constitute excusable neglect on the part of the client when the client has acted as a reasonable, prudent person in engaging an attorney of good reputation, has relied on him to protect his rights, and has made reasonable inquiry concerning the proceeding. It is admitted the appellant engaged competent counsel, as the trial court said “certainly one of the most-respected law firms in the First judicial circuit.” The appellant, when he received payment of the proceeds from the foreclosure sale of his first mortgage, asked his counsel when he would receive payment of his tax certificates, which he was advised by counsel to purchase before starting the foreclosure. He was advised the tax certificates would be paid in due time, would remain a lien, and no steps to collect them were necessary. The appellant took no steps to collect the amount of his tax certificates and neither did his attorney.
A mistake of law on the part of an attorney may give rise to a case of excusable neglect on the part of his client. We think a court of equity is not bound to impute to a client everything his attorney does or omits to do. Such imputation was not made by this court in
Wicke v. Lake
and
Whereatt v.
Ellis,
supra.
Negligence of an attorney has not been imputed to his client so as to bar him from claiming excusable neglect and being granted relief in the discretion of the trial court.
Babcock v. Perry
(1856),
“Under the statutes providing for the relief of a party from the consequences of mistake, inadvertence, surprise, or excusable neglect (sec. 2832, R. S.), a party may properly be held excusable for the negligence of his attorney, and be rel'eved from such negligence on proper terms.”
*424
Reliance by a client on his attorney who committed acts of negligence was also relieved on the ground of excusable neglect in
Bloor v. Smith
(1901),
The respondent contends that it would be useless to remand the case because a year has elapsed from the order of September 14, 1959, and the trial court can no longer act and also the foreclosure judgment and order confirming the sale must be amended. It is true a trial court under sec. 269.46 (1), Stats., must act upon the motion within the year of the notice of the judgment from which relief is sought.
Fischbeck v. Mielenz
(1916),
The appellant has made a sufficient showing to have the trial court hear the motion on its merits. It is true the appellant did not add the amount of his tax certificates to the judgment and did not make provisions in the judgment that the tax certificates could be added later, but this is not fatal to the appellant’s cause. Sec. 278.10(4), Stats., is not compulsory but permissive. Likewise, the amount of the tax certificates might have been added under sec. 74.695. Also sec. 74.67 gives an additional lien. Appellant also claims that under sec. 278.102, Stats. 1957, if any surplus is paid into court by the sheriff, any party to the action or a person not a party who has a lien on the mortgage premises at the time of sale, may file a claim. See
Kienbaum v. Haberny
(1956),
*426
Respondent claims the trial court has already exercised its discretion in the collateral suit,
i.e.,
the action to quiet title wherein the appellant unsuccessfully defended the lien of his tax certificates against a motion for summary judgment. The correctness of that decision is not before us nor do we know from the record what the issues and the grounds of the decision were. In
Marwalt Realty Co. v. Greene
(1937),
The respondent also claims it would be inequitable to Durr to remand the case because a new foreclosure sale would be necessary and he would be required to redeposit into court the amount of the tax certificates. The trial court can, in the exercise of its discretion, fix such “just terms” as the facts warrant under sec. 269.46 (1), Stats. However, we see no merit in the argument that a new sale is required. The other contentions are addressed to the discretion of the trial court which, no doubt, will consider them.
By the Court.- — The order is reversed, and the cause remanded for further proceedings consistent with this opinion.