Atkinson v. Asheville St. Ry. Co

• Decision Date: 14 November 1893
• Citation: 113 N.C. 581,18 S.E. 254
• Court: North Carolina Supreme Court
• Parties: ATKINSON. v. ASHEVILLE STREET RY. CO.

18 S.E. 254

113 N.C. 581

ATKINSON.

v.ASHEVILLE STREET RY. CO.

Supreme Court of North Carolina.

Nov. 14, 1893.

Corporations — Validity of Franchise — Collateral Attack—Practice on Appeal.

1. Plaintiff alleged that, being the owner of a franchise to build and operate a street railway, he delivered an assignment of it in escrow to another person, to be delivered to one D. after the latter had built certain lines of track thereunder, that it was wrongfully delivered to said D. before he had built any lines as agreed, and that defendant company, with full knowledge of the facts, had bought it from D. Plaintiff asked that the assignment to D. be declared void, and that defendant be enjoined from operating under such franchise. The franchise was in terms granted to "F. and his associates, to be known as the A. Company." Held, that defendants could not in that action attack the franchise on the ground that it was an invalid attempt on the part of the city to form a corporation, and at the same time grant a street-railway license thereto.

2. A statement, in the case on appeal, that notice of appeal was waived, cannot be contradicted for the first time on argument in the appellate court.

3. The record need not show that an appeal was duly entered, when it affirmatively ap pears from the ease on appeal, which bears date within the time within which an appeal could be taken, that the appeal was taken, and notice thereof waived.

Appeal from superior court, Buncombe county; John Gray Bynum, Judge.

Action by Natt Atkinson against the Ashe vllle Street-Railway Company to annul the delivery of a certain instrument assigning a franchise, and to restrain defendant from operating under such franchise. From a judgment for defendant, plaintiff appeals. Reversed.

The complaint was as follows:

"The plaintiff, complaining of the defendant alleges: First. That the city of Asheville is a body politic and corporate, duly chartered and organized under and by virtue of an act of the general assembly of North Carolina, entitled 'An act to amend the charter of the town of Asheville, ' ratified the 8th day of March, A. D. 1883, and the acts of which that act is amendatory, and the acts amending the same. Second. That on the 4th day of March, A. D. 1888, the plaintiff was the owner of a certain license privilege and franchise to operate a street railway in the city of Asheville, commonly known as the 'Farrinholt Charter, ' the same being a license privilege and franchise granted by the said the city of Asheville. by an ordinance duly enacted, passed, and ratified by the board of aldermen of the said the city of Asheville, to one L. A. Farrinholt and his associates, and by the said L. A. Farrinholt and his associates assigned to plaintiff, for value. A copy of said ordinance is hereto attached, marked 'Exhibit A, ' and is hereby made a part of this complaint. Third. That on the said 4th day of March, A. D. 1888, the plaintiff was, and ever since has been, the owner of valuable real estate in and near the said city of Asheville, some lots of which lie near Chestnut street and Merrimon avenue, in said city, and some lots of which He near Depot street, in said city, and all of which would have been greatly enhanced in value by the building and operating of a street railway on said streets and said avenue, and the greatest if not the only, object the plaintiff had, outside of the general welfare of said city, in purchasing the said Farrinholt charter, was to insure the building and operating of a street railway along said Chestnut and Depot streets and Merrimou avenue; and the plaintiff, in order to prevent the building of other lines of street railroad on only a part of the streets named in the said Farrinholt charter, the building of which would have rendered the building and operating of the street railway on all the streets therein named as aforesaid unprofitable, and in this way would have made it impossible to raise the necessary capital to build a street railroad on the streets therein named as aforesaid, deposited with the said city of Asheville the sum of one thousand dollars as aguaranty that the plaintiff would build, or cause to be built, a railroad on all of said streets so named as aforesaid, (all of which will more fully appear upon reference to said city's receipt for said money, a copy of which is hereto attached, and hereby made a part of this complaint,) and thereby induced the said city to refuse permission to the parties desiring it to build a railway on only a part of said streets, leaving the said Chestnut and Depot streets and Merrimon avenue without railroad facilities, [the said city being about to grant such permission on the ground that the plaintiff, as the said city and said parties alleged, could not command the means to build any road, and that a road on part of said streets was better than no road at all.] Fourth. That in order to accomplish the desire of plaintiff that street railroads should run on all of the streets named in the said Farrinholt charter, and especially that such railroads should be built and operated on said Chestnut and Depot streets and Merrimon avenue, the plaintiff entered into an agreement and contract with one E. D. Davidson, who, as plaintiff is informed and believes, is insolvent, whereby the said E. D. Davidson, in consideration of the assignment to him of the...