#### RUFUS L. PATTERSON et al., Trustees Under the Will of LUCY L. MOREHEAD, and HUNLEY ABBOTT and BEALE J. FAUCETTE, Interveners, v. THE DURHAM HOSIERY MILLS and A. H. CARR et al., Directors of THE DURHAM HOSIERY MILLS.

(Filed 15 June, 1938.)

Appeal and Error § 38—

When tile Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by the defendants from Spears, J., at April Term, 1938, of Dueham.

Affirmed.

*25 A. W. Kennon for plaintiffs, appellees.

B. 0. Everett for interveners, appellees.

William W. Sledge and Fuller, Beade & Fuller for defendants, appellants.

Per Cubiam.

This is an action to restrain, the defendants from further declaring and/or paying dividends on any stock of the defendant corporation until the accrued dividends on the 6% preferred stock of the plaintiffs, and on the stock of other nonassenting shareholders, are paid and/or discharged. His Honor, Judge Spears, entered judgment continuing the temporary restraining order theretofore issued by his Honor, Judge Williams, until the final determination of the action, from which judgment the defendants appealed, assigning error.

Devin, J., not sitting, and the remaining six members of the Court being equally divided in opinion as to whether there are on the record any disputed facts which' should be determined before final judgment, the judgment of the Superior Court is affirmed, and stands as the decision in this case without becoming a precedent. Braswell v. Town of Wilson, 212 N. C., 833, and cases there cited. This leaves undecided the questions of law sought to be presented, as they do not presently arise.

Affirmed.