On Rehearing.
True, the suit was initiated in the recorder’s court before' the present Code became effective. But this does not alter the conclusion that the court could not take judicial notice of the questioned ordinance when the case was tried in the circuit court, after the effective date of said Code.
The proposition here of judicial notice relates to a rule of evidence. And, while Section 9, supra, stays application of the 1940 Code in certain instances, it expressly authorizes it to apply “to changes in forms of remedy or defense, to rules of evidence” and “to provisions authorizing amendments of process, proceedings or pleadings in civil causes.” Western Ry. of Alabama v. Hart, 160 Ala. 599, 611, 49 So. 371.
The first clause of the Section does provide that the present Code shall not affect any “prosecution now commenced, or which shall be hereafter commenced, for any offense already committed.” But, other obvious reasons aside, this clause is not in-, stantly applicable because “prosecution”, as there used, has been held not to apply to quasi criminal cases for the violation of municipal ordinances. City of Birmingham v. Baranco, 4 Ala.App. 279, 283, 58 So. 944; Barton v. Gadsden, 79 Ala. 495.
The argument of appellee is also inapposite that the recent decision of this court in R. L. Payne v. City of Birmingham, ante, p. 559, 10 So.2d 36, is controlling to require an opposite conclusion.
The facts in the two cases are quite dissimilar. In the Payne case all proceedings, including the trial in the circuit court, transpired before the effectiveness of the 1940 Code. Hence the holding there that the law relating to the pertaining ordinances was governed by the status existing before the sections of the new Code became operative.
The application must be overruled.
Rehearing denied.