Where an execution was issued from a justice’s court, and an affidavit of illegality filed thereto was returned to a justice’s court in a different county, and upon trial in the latter court the affidavit of illegality was sustained and the levy dismissed, upon an appeal by the plaintiff in execution to the superior court of that county, that court, upon *551the fact appearing in the record that the affidavit of illegality together with the execution had been returned to the wrong magistrate’s court, properly declined to'act upon a motion to dismiss the appeal, and rightly dismissed the case with direction that the proceeding be returned to the proper court. There was, in such case, no error in adjudging that the costs in the appeal proceeding be paid by the defendant in execution.

Judgment affirmed.