{
  "id": 8565588,
  "name": "LLOYD M. TYNDALL, Plaintiff, v. MURIEL T. TYNDALL, Defendant, and GOLDSBORO SAVINGS AND LOAN ASSOCIATION, Garnishee",
  "name_abbreviation": "Tyndall v. Tyndall",
  "decision_date": "1967-04-12",
  "docket_number": "",
  "first_page": "106",
  "last_page": "108",
  "citations": [
    {
      "type": "official",
      "cite": "270 N.C. 106"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "39 S.E. 807",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "129 N.C. 191",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8659602
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/129/0191-01"
      ]
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    {
      "cite": "124 S.E. 2d 533",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "256 N.C. 541",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8573823
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/256/0541-01"
      ]
    }
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  "analysis": {
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  "last_updated": "2023-07-14T21:31:56.885447+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "LLOYD M. TYNDALL, Plaintiff, v. MURIEL T. TYNDALL, Defendant, and GOLDSBORO SAVINGS AND LOAN ASSOCIATION, Garnishee."
    ],
    "opinions": [
      {
        "text": "Per Curiam.\nPlaintiff knew his children would not \u201cgo hungry\u201d 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 \u201cgo lacking\u201d in some respects if he did not make additional payments for their support. Whatever the status of defendant\u2019s 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.\nConceding plaintiff\u2019s 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.\nIt would seem plaintiff\u2019s 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\u2019s 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\u2019s motion for leave to amend the complaint, a dismissal of the action was proper. There is nothing in the record tending to support plaintiff\u2019s assertion that the court abused its discretion in denying his motion for leave to amend.\nUnder these circumstances, independent of considerations relating to the sufficiency 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.\nAffirmed.",
        "type": "majority",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Robert H. Futrelle for 'plaintiff appellant.",
      "Herbert B. Hulee for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "LLOYD M. TYNDALL, Plaintiff, v. MURIEL T. TYNDALL, Defendant, and GOLDSBORO SAVINGS AND LOAN ASSOCIATION, Garnishee.\n(Filed 12 April, 1967.)\n1. Divorce and Alimony \u00a7 23\u2014\nAllegations that plaintiff husband paid certain sums to his wife under court order solely for the support of the children of the marriage, that the wife failed to use the money for the support of the children but used a part of it for her sole benefit and had deposited the balance in a savings account in her name, fails to state a cause of action, irrespective of allegations of fraud, since the facts alleged would give rise to a cause of action for the benefit of the children, but not a cause of action in favor of plaintiff to recover for his own benefit the moneys paid for the support of the children.\n2. Pleadings \u00a7 19\u2014\nWhere plaintiff\u2019s allegations affirmatively disclose that the cause of action he attempted to allege is fatally defective, the court properly dismisses the action upon demurrer.\n3. Pleadings \u00a7 24\u2014\nA motion to be allowed to amend after trial is begun is addressed to the discretion of the trial court, and the denial of the motion will not be disturbed in the absence of a showing of abuse.\n4. Attachments \u00a7 1\u2014\nWhere the allegations of the complaint affirmatively disclose that the cause of action attempted to be alleged is fatally defective, the incidental attachment of plaintiff\u2019s property must be dissolved.\nAppeal by plaintiff from Copeland, Special Judge, December 1966 Civil Session of Wayne.\nSummons was issued and complaint filed on November 1, 1966. Simultaneously therewith levy was made, in ancillary attachment proceedings, on a savings account of $1,380.62 in the name of defendant in Goldsboro Savings and Loan Association.\nThe complaint alleges in substance, except when quoted, the following: Plaintiff and defendant, formerly husband and wife, tvere divorced on March 4, 1963. A consent judgment entered in the divorce action obligated plaintiff to pay to defendant $200.00 a month for the support of their two children and to make mortgage payments of $75.00 per month. Plaintiff complied therewith until October 6, 1966, \u201cwhen said judgment was modified.\u201d In addition, plaintiff paid to defendant or to others \u201cfor her benefit and the benefit of the two children\u201d large sums, averaging in excess of $100.00 each month, in reliance on defendant's representations to him each month that \u201cshe was broke,\u201d and that the children would \u201cgo hungry\u201d and \u201cgo lacking,\u201d if he did not furnish support money \u201cover and above the amounts required in the consent judgment.\u201d In this manner defendant \u201cwilfully and intentionally tricked the plaintiff out of $2,880.00,\u201d and \u201cpracticed fraud and deceit upon him, thereby obtaining his money when she would not have done so by a truthful representation of the facts.\u201d Since August 1, 1963, defendant has diverted $2,880.00 paid to her \u201cfor the children\u2019s benefit,\u201d placed it in a savings account in her name in Goldsboro Savings and Loan Association and made withdrawals from time to time for her sole benefit. The balance in said savings account is $1,380.62. Plaintiff first became aware of the fraud and deceit practiced upon him by defendant in October 1966, when plaintiff, \u201cbecause of the defendant\u2019s addiction to the excessive use of alcohol and her .resulting inability to care for the plaintiff\u2019s children,\u201d made a motion \u201cfor a modification of the consent support judgment previously entered.\u201d Plaintiff alleges defendant is indebted to him in the sum of $2,880.00.\nPlaintiff does not allege in what manner the 1963 consent judgment was modified on October 6, 1966.\nThe ground for attachment stated in plaintiff\u2019s affidavit therefor is that \u201cthe defendant has secreted, and intends to continue secreting, a certain savings account in the amount of $1,380.62 at Golds-boro Savings and Loan Association, Goldsboro, North Carolina, for the express and specific purpose of defeating such judgment as the plaintiff might obtain in this action.\u201d\nDefendant demurred and moved (1) to dissolve the attachment and (2) to dismiss the action.\nThe court, being of the opinion the complaint fails to state a cause of action and that the affidavit for attachment fails to comply with G.S. 1-440.3, entered judgment sustaining the demurrer, dissolving the attachment and dismissing the action. Prior to the entry of said judgment, the court, in its discretion, had denied motions by plaintiff for leave to amend his complaint and his affidavit for attachment.\nRobert H. Futrelle for 'plaintiff appellant.\nHerbert B. Hulee for defendant appellee."
  },
  "file_name": "0106-01",
  "first_page_order": 146,
  "last_page_order": 148
}