104 Ga. 10 | Ga. | 1898
This is a case in which the doctrine of res adjudicata fully applies. Burton Brock had an attachment levied upon the land of John N. Brock, the attachment being returnable to a justice’s court. The justice rendered judgment upon the attachment, and the defendant took the case by certiorari to the superior court. ITis certiorari was overruled, and execution, issued upon the judgment, was levied upon the land of John N. Brock. The latter then filed an affidavit of illegality to the execution. This affidavit of illegality was dismissed by the court, as insufficient in law; and John N. Brock brings the case here for review. In the affidavit of illegality it was alleged, that when the constable levied the attachment upon the land he did not enter thereon nor give notice of the levy to either the defendant in attachment or his tenant who was in possession of the land; that the judgment was therefore illegal and void. In support of this contention, plaintiff in error cites the case of Smith v. Brown, 96 Ga. 274. The affidavit also showed that in the certiorari this identical point had been made; for it states that deponent “ undertook to correct the same [the judgment complained of] by certiorari, for the reasons that deponent had no notice of the levy of the attachment or the rendition of the judgment as required by law, and that this deponent has good and sufficient defense to the attachment proceedings, in this, that the debt sued upon was barred by the statutes of limitations, and that there was no consideration for the debt attempted to be collected: all of which this deponent reaffirms and now avers for the purpose of this illegality.” Thus the
Judgment affirmed.
