#### Flanigan *v.*Hutchins.

No. 6274.

June 12, 1928.

Affidavit of illegality of execution. Before Judge Stark. Gwinnett superior court. September 5, 1927.

The grounds of the affidavit of illegality are as follows:

1. When the suit was filed on which the purported judgment was rendered, deponent duly filed his defense thereto, and the case was duly entered on the issue docket of the court, and judgment was rendered at the March term, 1924, at which term deponent was teaching school in a distant county in the southeastern part of the State, but on the first day of the term he came to court,- having *492another ease for trial on the first day of the term. The case was duly tried, and deponent attended the trial, and personally testified in the case. After the disposition of the case the presiding judge, Hon. Lewis C. Bussell, granted deponent leave of absence from the court for the remainder of the term; and thereupon deponent departed from the court and went back to his school. No objection was made to deponent’s leave of absence either by the plaintiff or’ his counsel; but thereafter, and sometime before the expiration of the term of court, plaintiff took advantage of deponent’s absence, and took judgment against him, which is the foundation of the execution levied. For this reason deponent not only has not had his day in court, but a legal fraud was perpetrated on him, which vitiates the judgment rendered.

*491Hiel, J.

The exception in this ease is to a judgment dismissing an affidavit of illegality for “insufficiency.” The affidavit of illegality contains no grounds, equitable or otherwise, that would give the Supreme Court jurisdiction of the case; and it is therefore transferred to the Court of Appeals for consideration and determination.

*Transferred to the Court of Appeals.*

*All the Justices concur.*

*4922. After the levy of this execution, deponent’s wife filed her equitable petition to the March term, 1927, of the superior court, alleging that the property levied upon belonged to her, and obtained a temporary restraining order. On the hearing of the case before Judge W. W. Stark, the restraining order was dissolved, and Mrs. Flanigan thereupon filed her bill of exceptions and carried the case to the Supreme Court of Georgia, which bill of exceptions “operated as a supersedeas to the enforcement of said levy on said land now sought to be sold.” The Supreme Court affirmed the judgment in that case; but before the judgment of the Supreme Court was made the judgment of the superior court of Gwinnett County, where the suit was pending, and before the remittitur was filed in the clerk’s office, the plaintiff proceeded and is now proceeding to have the property advertised and sold under the same levy, and not under any new levy, which deponent says is illegal.

3. The execution and judgment are void for the reason that it appears from the face of the execution, as well as from its record on the general execution docket, that the judgment was rendered on March 9, 1924, which date was Sunday, and any judgment rendered or any execution issued on Sunday is void. “Wherefore deponent prays that these his grounds of illegality be sustained, and that said purported judgment and execution and levy based thereon be decreed to be null and void.”

*M. D. Irwin*and *O. A. Nix,*for plaintiff in error.

*N. L. Hutchins*and *W. L. Nix,*contra.