20 Ga. App. 602 | Ga. Ct. App. | 1917
In a suit in the county court of Bryan county the plaintiff recovered a verdict against the defendant. Execution was issued and levied upon the property of the defendant, and he filed an affidavit of illegality to the execution, upon the following ground: “Because the jury rendering the verdict upon which said execution is based was not a legal jury and had never been drawn or summoned to attend as jurors for said February term, and said jurors, having never been summoned and having never been drawn for said February term, were illegal jurors, and, being illegal jurors, could not find any legal verdict, and deponent never waived or consented for said jurors to try said case, but, on the other hand, made this fact known to the court before said verdict was rendered, and objected to said jurors finding any verdict in said case, whereof by reason of said fact said verdict is a nullity, and said execution is proceeding illegally.” The judge of the county court sustained a demurrer to the affidavit of illegality and dismissed it, on the ground that the defendant’s remedy was certiorari, and not an affidavit of illegality. The defendant sued out certiorari, complaining of the dismissal, and the judge of the superior court sustained the certiorari and remanded the ease to the county court “for trial on the plea of illegality.”
Judgment reversed.