
    Hollifield v. Spencer & Company.
    The petition in a civil action not having been filed and served the number of days required by law before the appearance term, and the defendant having appeared at the second term and, without making any objection or motion as to the date of filing or service, offered to plead to the merits, which the court erroneously refused to allow, and judgment having been then rendered in favor of the plaintiff, to which defendant submitted, making no effort to review or set aside the same, he could not thereafter attack such judgment by an affidavit of illegality. He had been served and had his day in court, and failed to pursue the proper remedies for the correction of the errors committed against him.
    August 27, 1892.
    Judgment. Illegality. Before Judge Boynton. Butts county.
    November 16, 1891.
    Illegality was interposed by Hollifield to the levy of an execution from the county court in favor of Spencer & Co. The judge of that court overruled the affidavit of illegality, and ordered the execution to proceed. Hollifield presented his petition for certiorari; the writ was refused, and he excepted. The original action was for $174.74, and was made returnable to the July quarterly term, 1889, of the county court, but the declaration was filed only thirteen days before that term. The defendant did not appear at that term but did appear at the next quarterly term, and when the case was called tendered a plea of the general issue, which was rejected on motion of plaintiffs, because the case had not been answered at the July term, and no name of counsel had been marked for defendant at that term. The affidavit of illegality was on the grounds, that tbe term at which the judgment was rendered was neither the appearance nor the judgment term of the suit; that the suit was not'filed in the county court as required by law, the filing being only thirteen days before the'term; and that defendant was not served with notice of the pendency of the suit as requii'ed by law, nor did he waive such notice. The judgment was dated October 28, 1889; the affidavit of illegality was filed on May 8, 1891.
   Judgment affirmed.

Wright & Beck, by brief, for plaintiff in error.

Lucian L. Bay, by brief, contra.  