Rogers v. Petty

1. “Where an affidavit of illegality and the execution have been returned into court, under the Civil Code, § 5307, it is the duty of the court to determine ‘thereon’ at the first term, unless the plaintiff or his attorney desires to controvert the facts contained in the affidavit. In that event an issue shall be joined, and tried by a jury.” (Italics ours.) Thompson v. Fain, 139 Ga. 310 (77 S. E. 166). In the instant case, as shown by the untraversed answer of the magistrate to the petition for certiorari, a written traverse to the affidavit of illegality was filed, and the issue thus raised…