Tyndall v. Tyndall

153 S.E.2d 819 (1967)

270 N.C. 106

Lloyd M. TYNDALL, Plaintiff, v. Muriel T. TYNDALL, Defendant, and Goldsboro Savings and Loan Association, Garnishee.

No. 358.

Supreme Court of North Carolina.

April 12, 1967.

*820 Robert H. Futrelle, Goldsboro, for plaintiff appellant.

Herbert B. Hulse, Goldsboro, for defendant appellees.

PER CURIAM.

Plaintiff knew his children would not "go hungry" if the two hundred dollars per month he paid in compliance with the consent judgment were used for their support. Moreover, he knew his children would "go lacking" in some respects if he did not make additional payments for their support. Whatever the status of defendant's personal financial affairs the gravamen of the complaint is that defendant failed to use money paid to her for the support of the children for that purpose, but used part of it for her sole benefit and now has the balance in a savings account.

Conceding plaintiff's allegations are sufficient to establish $2,880.00 was paid by plaintiff to defendant for use solely for the support of the two children, her failure to use the money for that purpose would give rise to a cause of action for the benefit of the children, to be prosecuted in their behalf, not to the cause of action plaintiff has attempted to allege, namely, a cause of action to recover for his own benefit a judgment against defendant in the amount of $2,880.00.

It would seem plaintiff's allegations affirmatively disclose the cause of action he attempts to allege is fatally defective. If so, this was sufficient ground for sustaining the demurrer and dismissing the action. Parrish v. Brantley, 256 N.C. 541, 124 S.E.2d 533. Be that as it may, plaintiff's present allegations, particularly with reference to fraud, are fatally defective; and it was proper to sustain the demurrer on this ground. Moreover, since the court, in its discretion, denied plaintiff's motion for leave to amend the complaint, a dismissal of the action was proper. There is nothing in the record tending to support plaintiff's assertion that the court abused its discretion in denying his motion for leave to amend.

Under these circumstances, independent of considerations relating to the sufficiency *821 of the affidavit for attachment, the order of attachment was properly dissolved. Knight v. Hatfield, 129 N.C. 191, 39 S.E. 807. Hence, the judgment of the court below is affirmed.

Affirmed.