Robbins v. Kinman , 177 Ga. 46 ( 1933 )

I-Till, J.

Under the act of 1838 (Cobb’s Digest, 514; Civil Code (1910), § 5306), and under the Civil Code (1910), § 5430, no affidavit of illegality shall be received by any sheriff, or other executing officer, until after the issuance of an execution and a levy made thereunder. There is nothing in the present record to show that an execution had been issued; and therefore the trial court did not err in dismissing the affidavit of illegality. Ga. Ry. & Power Co. v. Head, 150 Ga. 177, 178 (103 S. E. 158); Carter v. Alma State Bank, 34 Ga. App. 766 (131 S. E. 184).

Judgment affirmed.

All the Justices concur.