
    BROCK v. BROCK.
    Where a petition for certiorari, seeking to set aside a judgment from a justice’s court, has been overruled, the petitioner can not afterwards, by affidavit of illegality to the levy of an execution issued upon such judgment, avail himself of any defense which was made or which could have been made as a ground of certiorari.
    Argued February 14,
    Decided April 1, 1898.
    Affidavit of illegality. Before Judge Gober. Fannin superior court. May term, 1897.
    
      O. 72. Dupree, by Glenn & Rountree, for plaintiff in error.
   Simmons, C. J.

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 affidavit showed that the very point which was sought to be made therein had been already adjudicated against the defendant in attachment, by a court of competent jurisdiction. The judgment of that court may have been erroneous under the facts as now alleged, but it is binding upon the plaintiff in error until it is reversed or set aside. That judgment remaining undisturbed, the matter is res adjudicata, and the plaintiff in error will not be allowed again to litigate this question or to raise it in another proceeding between the same parties.

Judgment affirmed.

All concurring, except Cobb, J, absent.  