§ 9-13-123.Affidavit of illegality — By whom filed

The defendant against whom an execution runs is not always the person best positioned, or even able, to swear out an affidavit of illegality. This section widens the circle of who may act, so the remedy stays available when the defendant is absent, incapacitated, or has died.

Three categories of stand-ins are named. An attorney in fact — someone holding a power of attorney from the defendant — can file on the defendant’s behalf. An executor or administrator can file when the defendant has died and the property in question belongs to the estate. The statute does not define the third category, “other trustee,” but the term may reach guardians, conservators, and similar fiduciaries who hold legal responsibility for property on someone else’s behalf.

The common thread is legal authority to act for the defendant’s interest in the property under levy. Someone with no such standing — a stranger to the property or the judgment — cannot invoke this section merely because they sympathize with the defendant’s position.