Benjamin v. City of Montgomery

81 So. 145, 16 Ala. App. 653, 1919 Ala. App. LEXIS 11

• Court: Alabama Court of Appeals
• Decided: February 11, 1919
• Docket: 3 Div. 345.
• Status: Published

Opinion

BRICKEN, J.

This is the second appeal in this case. Benjamin v. City of Montgomery, ante, p. 389, 78 South. 167.

The complaint upon which the defendant was tried and convicted was not subject to the' demurrers interposed, and the court did not err in overruling the demurrers. Rosenberg v. City of Selma, 168 Ala. 195, 52 South. 742; Benjamin v. Montgomery, supra.

[1] The demand for trial by jury not having been made within the time required by law, a trial by jury was properly denied. Acts 1915, p. 939; Kreutner v. State, ante, p. 553, 80 South. 127; Code 1907, § 1451.

[2j The twelfth assignment of error must be sustained. The bill of exceptions, which purports to contain all of the evidence introduced upon the trial of this cause, affirmatively shows that the ordinance of the city of Montgomery which this defendant was charged with violating, was not introduced in evidence, and no proof whatever with reference thereto was made or offered to be made. The courts do not take judicial knowledge of the ordinances of cities and towns (Case v. Mobile, 30 Ala. 538; Furhman v. Huntsville, 54 Ala. 263; N. B’ham Ry. v. Calderwood, 89 Ala. 247, 7 South. 360, 18 Am. St. Rep. 105; Excelsior Steam Laundry Co. v. Lomax, 166 Ala. 612, 52 South. 347), and proof thereof is just as essential, under the law, as proof of any other material fact necessary to establish the case for the city.

[3] For the error in rendering judgment against the defendant, in the absence of proof of the ordinance under which he was being tried, the judgment of the lower court is reversed, and the cause is remanded.

Reversed and remanded.