#### MRS. B. C. OUTLAW, Administratrix of Estate of B. C. OUTLAW, Deceased, v. CITY OF ASHEVILLE.

(Filed 8 March, 1939.)

Appeal and Error § 38—

When the 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 defendant from Nettles, J., at December Term, 1938, of Buncombe.

Affirmed.

This was an action instituted in the general county court of Buncombe County to recover of defendant the value of certain water mains and lines which were alleged to have been appropriated by the city of Ashe-ville. From judgment of nonsuit in the county court the plaintiff appealed to the Superior Court. In the Superior Court the judgment of the county court was reversed and the cause was remanded to the county court for trial by a jury, upon the issues raised in the pleadings. From the judgment of the Superior Court, the defendant appealed to the Supreme Court.

Cecil C. Jackson for plaintiff.

Philip C. Cocke, Jr., for defendant.

Pee Cueiam.

The Court being evenly divided in opinion, Winborne, J., not sitting, the judgment of the Superior Court is affirmed as the disposition of this appeal without becoming a precedent, in accordance with the practice of the Court. Mills v. Jones, 213 N. C., 802.

Affirmed.