Workman v. Workman

89 S.E.2d 390, 242 N.C. 726, 1955 N.C. LEXIS 663

Opinion

Denny, J.

A demurrer to a complaint, on the ground that it does not state facts sufficient to constitute a cause of action, should be overruled if the complaint, when liberally construed in favor of the pleader, as it must be on demurrer, G.S. 1-151, alleges facts sufficient to constitute a cause of action. Or to put it another way, if any portion of the complaint alleges facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be reasonably and fairly gathered from it, the pleading will survive the demurrer. Bryant v. Ice Company, 233 N.C. 266, 63 S.E. 2d 547, and cited cases.

The plaintiff’s complaint, when liberally considered in favor of the pleader, alleges that the defendant abandoned the plaintiff on 5 December, 1954, and has failed to provide adequate support for her. Caddell v. Caddell, 236 N.C. 686, 73 S.E. 2d 923. The contention that the complaint does not allege that the abandonment was wilful is without merit. Abandonment imports wilfulness. Brooks v. Brooks, 226 N.C. 280, 37 S.E. 2d 909.

No exception was entered to the order signed on 29 April, 1955, directing the defendant to produce Mary Lou Workman, the infant child of the marriage, before the court, on 16 May, 1955, in order that the question of her custody might be determined. Therefore, we are not called upon to consider that order on this appeal. Even so, see In re Fitzgerald, post, 732. The appellant only assigns as error the order of the court entered on 10 May, 1955, overruling his demurrer. Hence, the ruling of the court below will be upheld.

Affirmed.

WiNBORNE and HiggiNS, JJ., took no part in the consideration or decision of this case.