CHAPMAN LUMBER COMPANY, a Corporation, and BASHFORD PLUMBING AND HEATING COMPANY, a Partnership, v. KENNETH RAY BENFIELD and Wife, MARGARET ELIZABETH BENFIELD, W. H. YARBOROUGH, JR., Trustee, and T. B. MOSELEY.
(Filed 15 April, 1942.)
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 defendants T. B. Moseley and W. H. Yarborough, Jr., Trustee, from Johnson, Special Judge, at November Term, 1941, of Wake.
Affirmed.
Special proceedings under C. S., 2593, to determine the order of priority of liens upon and tbe ownership of a fund held by the clerk of the Superior Court.
Ehringhaus ■& Ehringhaus for plaintiffs, appellees.
Joyner & Yarborough for defendants, appellants.
PeR Curiam.
Is plaintiffs’ claim, in its present form, of such nature as to create a lien upon the specific fund in the hands of the clerk ? The court below answered in favor of the plaintiff. As to the correctness of this ruling this Court (Schenck, J., not sitting) is evenly divided in opinion. Hence, the judgment of the Superior Court is affirmed in accord with the usual practice in such eases, and stands as the decision in this case without becoming a precedent. Howard v. Coach Co., 216 N. C., 799, 4 S. E. (2d), 449; Pafford v. Construction Co., 218 N. C., 782, 11 S. E. (2d), 548.
Affirmed.