113 N.C. 581 | N.C. | 1893
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 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