Glenn v. City of Prattville

71 So. 75 | Ala. Ct. App. | 1916

BROWN, J.

(1) While the judgment of the court shows that a demurrer to the complaint was overruled, the demurrer itself is not set out in the record proper, and appears only in the bill of exceptions. Under repeated rulings, the questions sought to be raised, by the demurrer are not presented for review.— Beck v. West & Co., 91 Ala. 314, 9 South. 199; Brooks v. Rogers, 101 Ala. 111, 13 South. 386; Heard v. Hicks, et al., 101 Ala. 13 South. 256.

(2) Courts take judicial notice of public statutes conferring ■authority upon municipalities in this state to adopt bylaws and ordinances, but do not take judicial notice of such ordinances or the proceedings of the municipal board in the exercise of such power.—North Birmingham, Street Ry. Co. v. Calderwood, 89 Ala. 247, 7 South. 360, 18 Am. St. Rep. 105; Barnes v. Common Council of Alexander City, 89 Ala. 602, 7 South. 437.

(3) Therefore, when, as in this case,.the complaint avers the existence and violation of an ordinance, a demurrer thereto confesses the averments, and cannot set up matter de hors the record as to the irregularity of the proceedings of the municipal board to avoid the ordinance. In such case the demurrer is a speaking demurrer and should be overruled.—Sanders v. Wallace, et al., 114 Ala. 263, 21 South. 947.

(4) The defendant’s objection to the ordinance is likewise untenable. The statute provides that: “Ordinances and resolutions purporting to be published by authority of the council in book or pamphlet form, shall be received as evidence of the passage and legal publication of such ordinances as of the dates mentioned or provided for therein, in all courts and places, without further proof.”—Code 1907, § 1259; Lane v. City of Tuscaloosa, 12 Ala. App. 599, 67 South. 778.

When the book of ordinances was offered, if the defendant desired to question the regularity of the proceedings of the municipal board in its passage, it was incumbent upon him to offer such proceedings in evidence, and, on appeal, make them a part of the record by bill of exceptions.—Barnes v. Common Council of Alexander City, 89 Ala. 602, 7 South. 437.

(5) The omission of the words “Council of” in the caption of the ordinance did not render it void, the provisions of section 1252 in prescribing such caption being merely directory.—Lane v. City of Tuscaloosa, supra; Lane v. City of Tuscaloosa, 12 Ala. App. 604, 67 South. 779; Bell v. Town of Jonesboro, 3 Ala. App. 652, 57 South. 138.

This disposes of all matters presented in the assignment of error and argument; and, as no error appears upon the record, the judgment of the circuit court is affirmed.

Affirmed.