
    35060.
    Miller v. Bruce.
    Decided April 21, 1954
    Rehearing denied July 27, 1954.
    
      Jesse M. Sellers, Jesse M. Sellers, Jr., for plaintiff in error.
    
      Brinson & Davis, contra.
   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.  