83 S.E.2d 239
35060.Court of Appeals of Georgia.
DECIDED APRIL 21, 1954. REHEARING DENIED JULY 27, 1954.
FELTON, C. J.
1. The second execution issued by the justice of the peace, the one to which the affidavit of illegality was filed, was issued before the counter-affidavit was filed, and, as no case was pending in the justice’s court prior to the filing of a counter-affidavit (Kennedy v. Miller, 179 Ga. 234 (3), 175 S.E. 588; Murphey v. McGough, 105 Ga. 816, 818 (3), 31 S.E. 757), the execution and levy thereunder were invalid and the affidavit of illegality filed thereto was meritorious.
2. The justice’s court erred in sustaining the demurrer to the affidavit of illegality and in dismissing the same. The superior court did not err in sustaining the certiorari.
3. Anything held in the cases of Tipton v. Conrad Lee, 21 Ga. App. 593 (94 S.E. 815), Giddens v. Gaskins, 7 Ga. App. 221
(66 S.E. 560) and Wilson v. Griffin, 22 Ga. App. 451
(96 S.E. 395) contrary to what is said here must yield to the Supreme Court decisions.
Judgment affirmed. Quillian and Nichols, JJ., concur.
DECIDED APRIL 21, 1954 — REHEARING DENIED JULY 27, 1954.
Affidavit of illegality. Before Judge McClure. Chattooga Superior Court. December 21, 1953.
Jesse M. Sellers, Jesse M. Sellers, Jr., for plaintiff in error.
Brinson Davis, contra.
Noel Miller filed an affidavit to foreclose a laborer’s lien against Mamon Price in a justice’s court. An execution was issued in pursuance thereof and was levied on certain property belonging to Price. When the levy was made a “replevy bond” was executed by Price as principal and C. T. Bruce as surety. Thereafter, no counter-affidavit having been filed in the matter, an execution was issued against Price as principal and Bruce as surety. After such execution was issued, Price filed his counter-affidavit. The counter-affidavit was dismissed for the reason “since the execution had already issued against Mamon Price and C. T. Bruce, said counter-affidavit and defense was filed too late.” The execution was levied on certain property belonging to Bruce. Bruce then filed an affidavit of illegality alleging that the execution and fi. fa. had been issued illegality for stated reasons. Then a “replevy bond” was executed by Bruce. Thereafter, Noel Miller filed a written demurrer to the affidavit of illegality. The demurrer was sustained and the affidavit was dismissed. On certiorari to the Chattooga Superior Court that court sustained the certiorari and set aside the judgment sustaining the demurrer and dismissing the affidavit of illegality and directed the justice
Page 500
court to proceed to hearing on the affidavit of illegality, which was ordered reinstated. The plaintiff in error excepted to this judgment.
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