THOMAS, J.
This is an appeal from the final judgment of the lower court refusing to grant a statutory rehearing applied for under section 5372 of the Code, known as the “four months statute,” and is the proper remedy for reviewing such action of the lower court.—End. Dep. Dis. G. L., etc., v. Harvey, 6 Ala. App. 245, 60 South. 602, and cases cited.. The reporter will set out the petition, as amended, for rehearing, that was so denied. The court sustained a demurrer to it, which presents as the only point for review the question as to whether or not the facts alleged in the, amended petition are sufficient, if true, to show either “surprise, accident, mistake, or fraud, without fault” on the part of petitioner or her counsel, within the' meaning of those terms as employed in said section 5372 of the Code.—Traub v. Fabian, 160 Ala. 210, 49 South. 240; Wheeler v. Morgan, 51 Ala. 573; Walker’s Case, 54 Ala. 577; North’s Case, 49 Ala. 385; Brock’s Case, 65 Ala. 79; Blood’s Case, 65 Ala. 103.
We cannot, it seems to us, with due regard for the decision of our Supreme Court, which are binding on us, hold otherwise than that the trial court did not err in sustaining the demurrers to the petition, as amended, and in denying the rehearing. It is no doubt true, as is contended, that the averments of the petition clearly show that the failure to make defense against the judgment prayed to be set aside was due to the mistake or oversight of the clerk of the court in stating, in the printed dockets of the cases pending in the court that were distributed as pamphlets among the bar for their information, the case of W. G. Tyler against the petitioner, Myrtle S. Williams, in a different style or way from that in which it was stated on the regular dockets of the court; and it is no doubt further true that this difference in the statement of the case led petitioner’s attorneys, as it naturally would under the circumstances as disclosed in the petition, to overlook the fact that the case stated and styled on the printed docket or pamphlet as “W. G. Tyler v. M. S. Williams,” and. which failed to show the appearance of any counsel for defendant, was the same case as was stated and styled on the regular [598]*598court dockets as “W. G. Tyler v. Myrtle S. Williams,” and which showed that counsel had entered an appearance for defendant; but it is further true that, notwithstanding this, the defendant’s counsel, with whose negligence defendant is chargeable, cannot escape — if we adhere, as we must, to the rulings of our Supreme Court — the charge of a lack of due diligence, which diligence, though it may not have required that the petitioner’s counsel discover from the printed docket itself that the two cases were one and the same, did require that, when they failed to discover on the printed docket the case against their client, which they knew was pending in that court to be tried, they make some inquiry of the clerk to ascertain the status of that case and why it had been omitted from the printed docket, which inquiry would have led to the information that it had not been omitted, but was on such docket, and was set for trial on the day there named.
It may be that where the clerk, as in this case, for his own convenience and that of the bar, prepares and furnishes printed lists of the cases pending for trial, together with a statement of the day they are, respectively, set for trial, counsel interested would have a right to rely on the information there imparted as to the date set for trial, the same as he would have a right to rely on information imparted in a letter from the clerk written by him in answer to a request from counsel for information as to when a particular case was set for trial, and that, if a case appearing on such list was taken up and tried on any day previous to the day it was there stated as set for trial, and this without a change of notice to counsel, who, relying in good faith on the first notice, was not present at the trial, then this would probably furnish good ground for rehearing (Renfro v. Merryman, 71 Ala. 195; Womack v. Bookman, 34 Ala. 38), although the clerk-may have made a mistake in the first instance by having given the wrong, instead of the correct, date that the case was set for trial, and although the case may have been tried on the correct date that had, at the time of the giving of the wrong date, been actually set for the trial. A party, we think, should not in this character of proceeding be charged with fault for having relied in good faith on information as to the date a case is set for trial, •although such information is incorrect, if it is imparted by the clerk, since he is the officer known to be the maker and custodian of the records which contain that information, and since, therefore, it is naturally tó be supposed that he would give only cor[599]*599rect information. But where the clerk imparts no information at all, the case is different; since, though a party may rely on information from the clerk, he is not allowed to rely on a lack of informationi from him with respect to a matter concerning which it is the party’s duty to inquire.
The recent case of Henley v. Chabert, 189 Ala. 258, 65 South. 993, decided by our Supreme Court, settles this proposition. In that case the bill alleged, as one of the grounds upon which the rehearing was prayed: “That the said case of Henley against these orators [which as previously averred was pending in the circuit court of Walker county, and in which complainants had, as here, seasonably filed a demurrer to the complaint] was never set down for trial * * * until some time in the month of October, 1912,” etc.; “that on the 22d day of October, 1912, without notice to orators, or either of them, or their attorneys, a judgment by default was rendered by the circuit court of Walker county, of which neither of these orators or their attorneys had any notice; that on, to-wit, the 21st day of November, 1912, a writ of inquiry was issued in the case, without any notice to either of these orators or their attorneys, and judgment rendered against orators in the sum of $2,000; and that prior to that time a list of the cases in the circuit court of Walker county, which were set for different days between November 11, 1912, and January 23, 1913, was published and furnished the several attorneys living in Jasper [where complainants’ counsel lived], and practicing in said court, and that nowhere in said published list or pamphlet in said cause did it state or show that said case of Henley against these orators was set for trial,” etc.
This ground of the bill for rehearing our Supreme Court disposed of very briefly by saying: “Nor is it sufficient ground for relief that the cause was not set down for trial until in the month of October, and the list of cases made out by the clerk and published did not disclose the case of respondent against the complainants. No diligence or effort on the part of complainants to ascertain the status of the cause is shown.”—Henley v. Chabert, supra, 65 South. 993.
The court cited in support of this holding the case of Renfro v. Merryman, 71 Ala. 195, where it was held that the claimant in a'case of the trial of the right of property was not without fault, and hence was not entitled to a rehearing where it appeared that he attended court on Wednesday and Thursday of the [600]
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THOMAS, J.
This is an appeal from the final judgment of the lower court refusing to grant a statutory rehearing applied for under section 5372 of the Code, known as the “four months statute,” and is the proper remedy for reviewing such action of the lower court.—End. Dep. Dis. G. L., etc., v. Harvey, 6 Ala. App. 245, 60 South. 602, and cases cited.. The reporter will set out the petition, as amended, for rehearing, that was so denied. The court sustained a demurrer to it, which presents as the only point for review the question as to whether or not the facts alleged in the, amended petition are sufficient, if true, to show either “surprise, accident, mistake, or fraud, without fault” on the part of petitioner or her counsel, within the' meaning of those terms as employed in said section 5372 of the Code.—Traub v. Fabian, 160 Ala. 210, 49 South. 240; Wheeler v. Morgan, 51 Ala. 573; Walker’s Case, 54 Ala. 577; North’s Case, 49 Ala. 385; Brock’s Case, 65 Ala. 79; Blood’s Case, 65 Ala. 103.
We cannot, it seems to us, with due regard for the decision of our Supreme Court, which are binding on us, hold otherwise than that the trial court did not err in sustaining the demurrers to the petition, as amended, and in denying the rehearing. It is no doubt true, as is contended, that the averments of the petition clearly show that the failure to make defense against the judgment prayed to be set aside was due to the mistake or oversight of the clerk of the court in stating, in the printed dockets of the cases pending in the court that were distributed as pamphlets among the bar for their information, the case of W. G. Tyler against the petitioner, Myrtle S. Williams, in a different style or way from that in which it was stated on the regular dockets of the court; and it is no doubt further true that this difference in the statement of the case led petitioner’s attorneys, as it naturally would under the circumstances as disclosed in the petition, to overlook the fact that the case stated and styled on the printed docket or pamphlet as “W. G. Tyler v. M. S. Williams,” and. which failed to show the appearance of any counsel for defendant, was the same case as was stated and styled on the regular [598]*598court dockets as “W. G. Tyler v. Myrtle S. Williams,” and which showed that counsel had entered an appearance for defendant; but it is further true that, notwithstanding this, the defendant’s counsel, with whose negligence defendant is chargeable, cannot escape — if we adhere, as we must, to the rulings of our Supreme Court — the charge of a lack of due diligence, which diligence, though it may not have required that the petitioner’s counsel discover from the printed docket itself that the two cases were one and the same, did require that, when they failed to discover on the printed docket the case against their client, which they knew was pending in that court to be tried, they make some inquiry of the clerk to ascertain the status of that case and why it had been omitted from the printed docket, which inquiry would have led to the information that it had not been omitted, but was on such docket, and was set for trial on the day there named.
It may be that where the clerk, as in this case, for his own convenience and that of the bar, prepares and furnishes printed lists of the cases pending for trial, together with a statement of the day they are, respectively, set for trial, counsel interested would have a right to rely on the information there imparted as to the date set for trial, the same as he would have a right to rely on information imparted in a letter from the clerk written by him in answer to a request from counsel for information as to when a particular case was set for trial, and that, if a case appearing on such list was taken up and tried on any day previous to the day it was there stated as set for trial, and this without a change of notice to counsel, who, relying in good faith on the first notice, was not present at the trial, then this would probably furnish good ground for rehearing (Renfro v. Merryman, 71 Ala. 195; Womack v. Bookman, 34 Ala. 38), although the clerk-may have made a mistake in the first instance by having given the wrong, instead of the correct, date that the case was set for trial, and although the case may have been tried on the correct date that had, at the time of the giving of the wrong date, been actually set for the trial. A party, we think, should not in this character of proceeding be charged with fault for having relied in good faith on information as to the date a case is set for trial, •although such information is incorrect, if it is imparted by the clerk, since he is the officer known to be the maker and custodian of the records which contain that information, and since, therefore, it is naturally tó be supposed that he would give only cor[599]*599rect information. But where the clerk imparts no information at all, the case is different; since, though a party may rely on information from the clerk, he is not allowed to rely on a lack of informationi from him with respect to a matter concerning which it is the party’s duty to inquire.
The recent case of Henley v. Chabert, 189 Ala. 258, 65 South. 993, decided by our Supreme Court, settles this proposition. In that case the bill alleged, as one of the grounds upon which the rehearing was prayed: “That the said case of Henley against these orators [which as previously averred was pending in the circuit court of Walker county, and in which complainants had, as here, seasonably filed a demurrer to the complaint] was never set down for trial * * * until some time in the month of October, 1912,” etc.; “that on the 22d day of October, 1912, without notice to orators, or either of them, or their attorneys, a judgment by default was rendered by the circuit court of Walker county, of which neither of these orators or their attorneys had any notice; that on, to-wit, the 21st day of November, 1912, a writ of inquiry was issued in the case, without any notice to either of these orators or their attorneys, and judgment rendered against orators in the sum of $2,000; and that prior to that time a list of the cases in the circuit court of Walker county, which were set for different days between November 11, 1912, and January 23, 1913, was published and furnished the several attorneys living in Jasper [where complainants’ counsel lived], and practicing in said court, and that nowhere in said published list or pamphlet in said cause did it state or show that said case of Henley against these orators was set for trial,” etc.
This ground of the bill for rehearing our Supreme Court disposed of very briefly by saying: “Nor is it sufficient ground for relief that the cause was not set down for trial until in the month of October, and the list of cases made out by the clerk and published did not disclose the case of respondent against the complainants. No diligence or effort on the part of complainants to ascertain the status of the cause is shown.”—Henley v. Chabert, supra, 65 South. 993.
The court cited in support of this holding the case of Renfro v. Merryman, 71 Ala. 195, where it was held that the claimant in a'case of the trial of the right of property was not without fault, and hence was not entitled to a rehearing where it appeared that he attended court on Wednesday and Thursday of the [600]*600■first week of the term at which the case was triable, ready with his testimony and attorney to try the case, but, finding that the case had not been docketed, he and his attorney left court, when afterwards, to-wit, on Saturday of that week, the case was for the first time docketed, and was tried immediately after being so docketed and without notice to claimant or his counsel. In disposing of the question, Judge Brickell, speaking for the court, said: “Waiving all other considerations, it is manifest the appellants were wanting in reasonable diligence. * * * Reasonable diligence required them to be active in the prosecution of the claim. The inadvertence of the clerk in omitting to enter the suit on the docket it was their duty to cure by directing his attention to the omission. That omission did not work a discontinuance of the suit; and it was the duty of the clerk, when he discovered it, to rectify it by docketing the cause. When docketed, it was within the discretion of the court to call the cause for trial at any time during the term, a particular day not having been set for trial.”—Renfro v. Merryman, supra.
The case as made by the instant petition, where from the allegations of the petition it appears that, on the printed docket or pamphlet furnished by the clerk to petitioner’s counsel, the cause pending for trial against her as defendant was not stated -or described with that fullness and particularity that it was stated or described on the regular dockets of the court, and that as a result of this difference in the statement or description of the cause petitioner’s counsel were misled, and overlooked the fact that it was one and the same cause, is certainly no stronger than the case of Henley v. Chabert, supra, where, as seen, it appeared that on the printed docket or pamphlet, furnished counsel the cause pending in the court against petitioner as defendant was not stated or described at all, but was omitted entirely therefrom. The fact that the cause that was pending for trial against petitioner here as defendant was so meagerly described in the printed list of pending causes that was furnished petitioner’s • counsel as not to call such counsel’s attention to the fact that it was the same cause as that in which they had been previously employed to represent petitioner and wherein they had already filed a demurrer, surely puts petitioner in no better position or standing for a rehearing than if a statement or description of said cause had been left off or omitted entirely from said list.
[601]*601On account of the difference in description between the case against petitioner as stated or styled on the printed docket and the same case as stated or styled on the regular court docket, it may be that counsel should be excused, as urged by them, from not discovering the identity of the cases from an inspection of the printed list itself; but when we so excuse them upon this theory, upon which they insist, it amounts to a holding that the case was so meagerly and differently described in the printed list from what it was on the regular docket as to be equivalent, so far as the printed list conveyed any information to counsel with respect to the matter, to having been left off entirely from the printed list. Therefore, in the final analysis of the case at bar, we are presented exactly with the same proposition as confronted our Supreme Court in the case of Henley v. Chabert, supra; consequently, for us to hold here that the appellant was entitled to a rehearing would be to overrule the decision of our Supreme Court in the latter case, unless that case can be differentiated from this, as counsel insist it can, by reason of the fact of the large difference between the number of causes and the volume of business pending in the court where that case originated (the Walker county circuit court) and the number of causes and volume of business pending in the court where this case originated (the city court of Birmingham).
But we cannot see that these facts should make any difference in the application of the principle here involved. Attorneys, whether rural or urban, whether enjoying a large or small practice, whether employed in many or only a few cases, and whether those cases are pending in a court with heavy or light dockets, are supposed to know and keep in mind, by memory if they be few, and by memorandum if they be many, the cases in' which they have been employed; and when a clerk furnishes an attorney with a printed list of the cases pending in a particular court in which that attorney practices, then, although it is customary for ‘the clerk to furnish such list, and although ordinarily it is reliable, it is the duty of the attorney to look over the list and see if the cases in which he is employed are listed, and, if not listed, to make inquiry of the clerk as to their status, because the attorney, upon not finding" on such list a case in which he has been employed and which he knows is pending for trial, must naturally infer that there has been an oversight in some way on the part of the clerk in' omitting it.
[602]*602The fact that an attorney has so many cases that he cannot keep them actually in mind does not relieve the duty of meeting this requirement; for under such circumstances he can keep a written memorandum or private list of his cases, from which list he can as conveniently check the list furnished him by the clerk as he could from memory where his cáses are few, which checking, if properly done, will in all cases lead to a discovery of the omission of any of his cases from the list furnished by the clerk. If omitted, then it is a case where the clerk has furnished no information at all, and it is therefore incumbent on the attorney to inquire. This, it seems to us, is the rationale of the decision of our Supreme Court in the two cases to which we have last adverted.—Henley v. Chabert and Renfro v. Merryman. No inquiry as to the status of the cause having been made in the present case, so far as appears from the allegations of the petition, a case of due diligence is not shown, and the lower court, consequently, did not err in sustaining the demurrers to the petition and in denying the application for rehearing.—Authorities supra; National Co. v. Hinson, 103 Ala. 532, 15 South. 844; 4 Mayf. Dig. 715, 312.
The principles governing the granting of rehearings under the statute (Code, § 5372) here invoked are the same as those obtaining had relief been sought by bill in equity, since the object of the statute was merely to provide a less expensive and more speedy remedy than the latter and as cumulative of it.—Renfro v. Merryman, supra; Evans v. Wilhite, 167 Ala. 587, 52 South. 845; Todd v. Leslie, 171 Ala. 625, 55 South. 174. As a statement of these principles, and in fortification of our application of them to the case at bar, it is not inappropriate to here quote briefly from the decisions of our Supreme Court, which we do as follows : “ ‘A proper and due regard for the peace and interests of society requires strictness and caution in exercising the power to disturb the decrees and judgments of other courts of competent or concurrent jurisdiction, and reopening controversies, which it is the policy of the law to quiet. * * * To successfully invoke the interposition, it is not sufficient that wrong has been done, but it must be manifest that the wrong occurred because of accident, surprise or fraud, or the act of the opposite party, and without fault or neglect on the part of the party complaining. A concurrence of injustice committed and freedom from fault and negligence is an indispensable condition to the exercise [603]*603of this jurisdiction.’—Waldrom v. Waldrop, 76 Ala. 289. * * * ‘The rules of equity are strict in requiring a party seeking relief from a judgment at law to acquit himself of fault or neglect in respect of defenses which might have been interposed to prevent the judgment.’ * * *—Foshee v. McCreary, 123 Ala. 493 [26 South. 309]. * * * The highest degree of diligence [though other authorities use the term “due diligence”] is exacted from him, and, if it is not exhibited, the court will not intervene.— Norman v. Burns, 67 Ala. 248.”—Henley v. Chabert, supra.
Affirmed.