§ 9-13-121.Affidavit of illegality — To show lack of service; not available to go behind judgment

This section draws the line between the two things an affidavit of illegality can and cannot reach. A defendant who was never served with the underlying suit and never appeared in it has a genuine complaint about the execution’s foundation — no valid judgment can bind someone the court never had before it. That defendant may raise the missing service by affidavit of illegality, stopping the execution at the levy stage rather than having to hunt down some other remedy first.

The second sentence closes off a different move. A defendant who was served, or who appeared and litigated the case, has already had the chance the law requires. That defendant cannot use an affidavit of illegality to reopen the merits of the judgment — to argue, for instance, that the underlying claim was wrong, that the evidence fell short, or that the court made some error in resolving the case. Those arguments belong in an appeal, a motion for new trial, or a motion attacking the judgment directly, not in a proceeding built to police the execution.

The distinction keeps the affidavit of illegality narrow. It is a defense against a defective execution, not a second chance to relitigate a judgment already entered against someone who had the opportunity to defend against it.