Rawls v. Norfolk Southern Railroad

AlleN, J. The authorities fully sustain the position of the plaintiff that it is the duty of one who appeals from a judgment of a justice of the peace to see that his appeal is docketed at the next term of the Superior Court (Abel v. Power Co., 159 N. C., 348); but as was said in Love v. Huffines, 151 N. C., 380: “It does not follow that the appellee, by whom the judgment before the justice was obtained, could not waive his right to object to any irregularities in the procedure by which the case was carried into the Superior Court, by his own laches or by such *213 conduct as would be tantamount to an admission on bis part tbat tbe irregularities bad worked no barm to him, and therefore be was willing to accept tbe jurisdiction of tbe bigber court, as derived from tbe lower court, and try tbe case in tbe former court upon its merits. Tbis is not a case wherein there is any inherent lack of jurisdiction, in tbe magistrate or tbe Superior Court, of tbe cause of action or tbe person. . . . If they intended to take advantage of any technical delay of tbe defendant in carrying bis case to tbe higher court, it whs simple justice, and even fairness, tbat they should have said so before they entered upon tbe trial of tbe case, having accepted a jury in tbe Superior Court, and thereby expressed their willingness in tbe most emphatic way tbat tbe case should be heaid in that court upon its real and legal merits. Litigants' may waive their rights, and even their constitutional rights.” Tbe evidence of waiver is clear. Tbe appeal was on tbe docket of tbe Superior Court one and a half years with no notice from tbe plaintiff tbat be intended to take advantage of any irregularity in the appeal; it was set for trial several times and tbe parties incurred tbe expense of taking depositions preparatory to a bearing on tbe merits. We have examined tbe charge, and find nothing of which tbe plaintiff can justly complain; but if it were otherwise we could not consider tbe error, because there is no exception to tbe charge in tbe case on appeal. As was pointed out in Worley v. Logging Co., 151 N. C., 499, “Tbe preparation of tbe assignment of error is tbe work of tbe attorney for tbe appellant, and is not a part of tbe ease on appeal, and its office is to group tbe exceptions noted in tbe case on appeal; and if there is an assignment of error not supported by an exception, it will be disregarded.” Tbe exception to tbe refusal of tbe court to permit a witness to answer a question as to market value is also without merit, as tbe record does not indicate what tbe answer of tbe witness would have been. No error.