#### BESSIE B. KELLY v. J. P. KELLY.

(Filed 29 November, 1950.)

Appeal and Error § 38—

Where 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.

Joiinsou, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from Phillips, Resident Judge of the 13th Judicial District, at Chambers, 30 September, 1950.

Civil action for alimony without divorce under statute codified as G.S. 50-16.

Carroll & Sleele for plaintiff, appellant.

Boggan, Page, Lee & Page for defendant, appellee.

Per Curiam.

The appeal is from an order denying the application of the feme plaintiff for an allowance out of the estate or earnings of her husband, the defendant, for subsistence and counsel fees pending the trial of the issues involved in the action. Since Justice Johnson does not sit in this cause and the remainder of the Court are evenly divided in opinion, the order of the Superior Court is affirmed without becoming a precedent. Hinson v. Comrs. of Yadkin, 216 N.C. 806, 6 S.E. 2d 504.

Affirmed.

JOHNSON, J., took no part in the consideration or decision of this case.