Miller v. Bruce

Court of Appeals of Georgia

Miller v. Bruce

83 S.E.2d 239, 90 Ga. App. 499, 1954 Ga. App. LEXIS 743

CourtCourt of Appeals of Georgia

DecidedApril 21, 1954

Docket35060

StatusPublished

This text of 83 S.E.2d 239 (Miller v. Bruce) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Bruce, 83 S.E.2d 239, 90 Ga. App. 499, 1954 Ga. App. LEXIS 743 (Ga. Ct. App. 1954).

Pincite

Opinion

Eelton, 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.

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