That Code section is as follows: "When the levy shall have been made, and affidavit and bond delivered to the officer as herein provided, it shall be the duty of such officer to suspend further proceedings on such execution, and return the execution, affidavit, and bond to the next term of the court from which the execution issued; and it shall be the duty of said court to determine thereon at the first term thereof, unless the plaintiff or his attorney shall desire to controvert the facts contained in said affidavit, in which case an issue shall be joined, which issue shall be tried by a jury at the same term, unless good cause is shown for a continuance." The defendant in error cites and relies on McLendon v. Lemon, 79 Ga. App. 751 ( 54 S.E.2d 437), and Parker v. Rosenheim, 97 Ga. 769 ( 25 S.E. 763), as being controlling of this question in his favor. An examination of the McLendon case will show that the plaintiff in error there contended that the court erred in trying the illegality case at a term of court which convened within a period of less than 20 days from the time the proceeding was returned.
(b) Granting that the affidavit of illegality was not sufficient, under the decision in Flynn v. State, 209 Ga. 519 ( 74 S.E.2d 461) and similar cases to raise a constitutional question, it nevertheless constituted a statement on the part of each defendant that it did not have sufficient employees over sufficient period of time to become an employer within the terms of the act. The original pleading was accordingly not a mere plea of general issue (as in Gosa v. Clark Sons, 43 Ga. App. 310, 158 S.E. 608, and McLendon v. Lemon, 79 Ga. App. 751, 54 S.E.2d 437) which would not have constituted enough to amend by. Neither did the amendments contain new and independent grounds of illegality, but they were rather an amplification of grounds already pleaded, for which reason the objections to the amendments were properly overruled. The affidavit as amended was sufficient to present an issue of fact, and the demurrers thereto were properly overruled.