If the defendant was not served and did not appear, he may take advantage of the defect by affidavit of illegality. However, if he has had his day in court, he may not go behind the judgment by an affidavit of illegality.
(Orig. Code 1863, § 3597; Code 1868, § 3621; Code 1873, § 3671; Code 1882, § 3671; Civil Code 1895, § 4742; Civil Code 1910, § 5311; Code 1933, § 39-1009.)
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 269 et seq.
C.J.S.- 33 C.J.S., Executions, § 288 et seq.
ALR.- Estoppel of or waiver by parties or participants regarding irregularities or defects in execution or judicial sale, 2 A.L.R.2d 6.