Section applicable to levy on land.

- No exception to the rule laid down in this section arises by reason of the fact that the levy is upon land. Padgett v. Waters, 4 Ga. App. 306, 61 S.E. 293 (1908).

When papers returnable to justice of peace court.

- When an execution issues from a justice of peace court and affidavit of illegality is filed, it is the duty of the levying officer to return the papers to the justice of peace court for trial. Padgett v. Waters, 4 Ga. App. 306, 61 S.E. 293 (1908).

Return to adjourned session.

- If the sheriff makes the sheriff's return to an adjourned session, and the clerk enters the case on the docket, it is error in the court to call the case up, and dismiss the case at that term. Beall v. Bailey, 45 Ga. 300 (1872).

No notice of hearing necessary to affiant when return made to county court.

- When an affidavit of illegality is returned to a county court for trial, no notice of the time and place of hearing need be given to the party filing the affidavit. Berry v. Jordan, 121 Ga. 537, 49 S.E. 607 (1904).

Sheriff protected though property not sold.

- Sheriff, whose term of office expires pending trial of an illegality, is not in default for not selling the property when a proper bond has been taken and returned. Tucker v. Keen, 60 Ga. 410 (1878).

Recitals of fact in affidavit of illegality must be taken as true, unless written traverse or joinder of issue is filed, and when the affidavit of illegality had not been traversed at the time of the hearing, and in view of the recitals therein as to the settlement of the indebtedness by accord and satisfaction, the judge was authorized to find in favor of the defendant in execution as a matter of law. Beavers v. Cassells, 56 Ga. App. 146, 192 S.E. 249 (1937), aff'd, 186 Ga. 98, 196 S.E. 716 (1938).

Allegations of fact contained in affidavit of illegality are taken as true upon mere motion to strike. Georgia Creosoting Co. v. Moody, 41 Ga. App. 701, 154 S.E. 294 (1930).

Proper method of joining issue on facts in affidavit, when execution is based on common law judgment, is by writing. It cannot be done orally. Thompson v. Fain, 139 Ga. 310, 77 S.E. 166 (1913).

When written traverse not required.

- When an execution is based on a non-common law judgment, a written traverse is not necessary. Owen v. Cunningham, 111 Ga. App. 399, 141 S.E.2d 912 (1965).

Jury trial proper when written traverse is filed.

- When written traverse to affidavit is filed, issue thus raised is properly tried by jury. Rogers v. Petty, 43 Ga. App. 771, 160 S.E. 128 (1931).

Motion to dismiss affidavit was rightly denied when at least one of the grounds thereof presented a legal defense against the further progress of the execution. American Mtg. Co. v. Tennille, 87 Ga. 28, 13 S.E. 158 (1891).

When parties are at issue on facts set forth in affidavit, the defendant in fieri facias cannot set up new grounds of illegality not contained in the defendant's affidavit. Dever v. Akin, 40 Ga. 423 (1869); Brown v. Gill, 49 Ga. 549 (1873).

On trial of affidavit, burden of proof is on plaintiff in fieri facias to make out prima facie case by putting in evidence an execution fair on the execution's face and a legal levy entered thereon. Hill v. City of Calhoun, 47 Ga. App. 753, 171 S.E. 459 (1933).

Burden of proof on affiant when affidavit raises affirmative defenses.

- When an affidavit of illegality contains allegations of fact in the nature of affirmative defenses, upon issue joined the burden of establishing those defenses rests on the affiant. Thompson v. Fain, 139 Ga. 310, 77 S.E. 166 (1913); Hill v. City of Calhoun, 47 Ga. App. 753, 171 S.E. 459 (1933).

Effect of want of prosecution by affiant.

- Affidavit of illegality having been filed before the time for the preceding regular term and counsel for the affiant being present and declining to try the case when the case was called for trial at the special term, the court did not err in dismissing the case for want of prosecution. Walker v. O'Connor, 23 Ga. App. 22, 97 S.E. 276 (1918).

Cited in Bowen v. Groover, 76 Ga. 101 (1885); Moore v. O'Barr, 87 Ga. 205, 13 S.E. 464 (1891); Jackson v. Maner, 95 Ga. 702, 22 S.E. 705 (1895); Mobley v. Goodwyn, 39 Ga. App. 64, 146 S.E. 28 (1928); Scott v. Mayor of Mount Airy, 186 Ga. 652, 198 S.E. 693 (1938); Cain v. Dixie Trading Co., 73 Ga. App. 458, 36 S.E.2d 876 (1946); McLendon v. Lemon, 79 Ga. App. 751, 54 S.E.2d 437 (1949); Powell v. Powell, 95 Ga. App. 122, 97 S.E.2d 193 (1957); Bosson v. Bosson, 117 Ga. App. 629, 161 S.E.2d 433 (1968); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).

Am. Jur. 2d.

- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, §§ 269 et seq., 301 et seq.

C.J.S.

- 33 C.J.S., Executions, § 288 et seq.