Atkinson v. Asheville Street Railway Co. , 113 N.C. 581 ( 1893 )

Clark, J.:

The so-called “Farinholt” charter is simply a license by the city to lay down a railway track on certain streets mentioned, granted to individuals named, who, of course, could act as a corporation only upon duly taking out letters of incorporation before the Clerk or obtaining a charter from the General Assembly. The question whether such incorporation has been duly obtained, or whether those parties have attempted to exercise corporate functions without it, is not raised in this action, and could not be in this collateral waj.

The city authorities were empowered to issue the license. Elliott R. & S., 329, 334; Burlington v. Railroad, 31 Am. Dec., 145; Railroad v. Richmond, 96 U. S., 521. The complaint avers that it was assigned by the plaintiff, then owner of the license, in escrow to Martin who, in breach of the trust reposed in him, has conveyed it to the defendant, who is endeavoring to operate under it. It was error to hold that a cause of action is not set out.

The case on appeal recites “ plaintiff excepted and appealed. Notice of appeal waived.” The Judge in a memorandum, appearing in the transcript on appeal, says that “ his recollection is that the plaintiff asked an appeal, and if the failure to make the entries was his inadvertence, he cannot allow plaintiff to be prejudiced,” and grants defendant “ leave to file counter statement, as it had asked to do.” This, it seems, the defendant did not do, and the Judge adopted the case on appeal prepared by appellant. The waiver is neither controverted nor is there a denial that an appeal was, in fact, taken, though opportunity was given defendant by leave to file a counter case. There is nothing beyond the bare suggestion in defendant’s printed argument or brief that notice of appeal was not served, and that entry of appeal was not made. But this neither denies taking the appeal nor waiver of notice, nor if it did, does it do so in a legal mode. If notice was waived, why should it be served, and if appeal was actually taken, whether it was. entered or not becomes less material. If there had been a denial in a legal way and at.the proper time of a waiver, the Court could not recognize the waiver, unless in writing. Sondley v. Asheville, 112 N. C., 694, in which case there were contradictory affidavits, and the Court disregarded the alleged verbal agreement, under Rule 39, and repeated rulings of this Court. Besides, the denial of a waiver should have been made below, and not for the first time by a suggestion in the argument in this Court, and in contradiction of the case on appeal adopted by the Judge. Walker v. Scott, 102 N. C., 487, cited in State v. Price, 110 N. C., 599. Strictly and properly the record should show that the appeal was duly entered, but that is not imperative if it appears, as here, affirmatively that the appeal, in fact, was taken and notice was waived. Fore v. Railroad, 101 N. C., 526. Here the case on appeal recites that the defendant excepted and appealed, and that notice of appeal was waived. This not being controverted by the appellee, even if it had not been adopted by the Judge, is evidence of those facts. Besides, in addition, the case itself bears date September 10, 1892, within the time within which the appeal could be taken. This distinguishes this case from Moore v. Vanderburg, 90 N. C., 10; Wilson v. Seagle, 84 N. C., 112, and Spence v. Tapscott, 92 N. C., 576, relied on by appellee. The motion to dismiss appeal is denied. In dismissing the action below there was Error.