§ 9-13-120.Affidavit of illegality — When authorized; bond and security

This section opens Article 6 by naming the tool the rest of the article builds on: the affidavit of illegality. It is not a lawsuit filed in a courthouse clerk’s office. It is a sworn, written statement handed directly to the officer holding the execution — the sheriff or constable who has already levied on the property — stating why the execution is illegal.

The section covers two distinct problems, and the difference matters. An execution can be illegal at its root, meaning it never should have issued the way it did — perhaps no valid judgment supports it, or it names the wrong party, or it commands more than the judgment allows. Or an execution that issued properly can become illegal later, through some defect in how it is being carried out after the fact. Either kind of defect can support an affidavit, but only once the officer has levied on property. A grievance about an execution that has not yet touched any property does not fit this remedy.

Filing the affidavit alone is not the whole procedure. The person raising the illegality must also deliver bond and good security for the forthcoming of the levied property, on the terms the rest of this article spells out. Later sections in Article 6 fill in the mechanics: who may file, when the officer must accept the affidavit, how much the bond must be, and what happens once the affidavit and bond reach the court.