
    Reeves v. State, ex rel. Carlisle.
    
      Mandamus.
    
    (Decided April 18, 1906,
    41 So. Rep. 927.)
    1. Mandamus; Execution After Return Day. — Where writs of pensión have become functus officii from lapse of time,' mandamus will not issue to compel the sheriff to execute them; nor will mandamus lie to compel the execution of writs not yet in the sheriff’s hands.
    Appeal from Pike Circuit Court.
    Heard before Hon. IT. A. Pearce.
    Mandamus by the State on the relation of Carlisle against Reeves, sheriff, to compel him to put Carlisle in possession of certain lands under a writ of possession after the return day thereof, or under a writ of posses-session to be afterwards issued. The facts sufficiently appear in the opinion of the court. From an order granting the prayer of the petition, Reeves appeals.
    Foster, Samford & Carroll and J. M. Chilton, for appellant.
    The writ of execution and possession being returnable to the succeeding term of tlie court became after March 6th, 1905, functus, and even if the sheriff had not returned it, he would have been powerless to execute it, so the issuance of the writ would have been nugatory. — Nr parte Tillman, 93 Ala. 101. . Any. attempted execution.of it after the return day would have been void. — Shapard v. Rhea, 49 Ala. 125; Smith v. Mundy, 18 Ala. 182; Morgan v. Ramsey, 15 Ala. 190. Nor could the sheriff amend his return without leave of the court and not then as to subsequently occurring facts. —Bibb v. Collins, 51 Ala. 550. Mandamus will not lie to enforce a duty subsequently arising. On every phase of the case, the court was powerless to issue tlm writ and a judgment should here be rendered reversing'and rendering the same. — Street v. Slade, 77 Ala. 576.
    M. N. Carlisle, for appellee.
    Mandamus is the remedy to compel a sheriff to execute a writ of possession.-— ' TJx parte Grand, 53 Ala. 16; Moses on Ma/ndamns, p. 59; Freeman on Executions, (4th Ed.) 472.
   DENSON, J.

This is a mandamus proceeding commenced in the circuit court of Pike county, on the relation of M. N. Carlisle, against S. M. Beeves, sheriff of Pike county. The purpose of the proceeding is to compel the sheriff to execute a writ of possession which Avas issued on the 31st day of December,1904, and placed in the sheriff’s hands on the same day, by putting relator in possession of the lands described in said writ. The petition Avas filed January 14, 1905. The rule nisi appears to have been Issued on the 14th day of January, 1905, requiring the sheriff to answer at the nex term of the court., which Avas held on the first Monday in March, 1905. The prayer of the petition is to the effect that the defendant he required to sIioav cause at the next term of the court why the peremptory Avrit of mandamus should not issue, commanding him to fully execute, said writ of possession. On the 14th day of February, 1.905, the relator filed a motion in which he prayed the court for an order requiring the sheriff to execaite the Avrit of possession issued on the 31st day of December, 1904, by putting petitioner or movant in possession, or that he show canse why such writ should not be executed. No notice appears to have been taken by the court of this motion. On the 2d day of the March term, 1905, on motion of the defendant, the rule nisi or temporary Avrit of mandamus Avas quashed, and the clerk Avas ordered by the court “to issue a proper writ in accordance with the order made by the judge in vacation.” The order of the judge referred to was the order indorsed by the judge on the application for the mandamus. On the 13th day of March, 1905, the clerk issued a notice to the defendant, in which are set out the averments of the original application for the mandamus, with the additional averments that the sheriff had on the 2nd day of March, 1905, returned the writ of possession of December 31, 1904, Avith the endorsement thereon as follows: “Returned on this day, for that I failed to find defendant in possession of the land and failed to find any one in possession liable to be dispossessed under this writ and return-ed no property found as to the execution for costs.” In the paper or notice is also contained the following statement : “That another writ of possession was issued on said judgment on the 13th day of March, 1905, and is uoav in the hands of said sheriff, which said sheriff now fails and refuses to execute, and Avhich said Carlisle asks that the sheriff be commanded to execute, -under the prayer of said petition and the order of the court in this case.” Then follows the command or rule nisi as follows: “You, S. M. Reeves, sheriff of Pike county, are hereby commanded to execute forthwith the writ of possession now in your hands, issued from the circuit court .of said county in the case of M. N. Carlisle v. Annie B. ITays, on the 13th day of March, 1905, by putting the said M. N. Carlisle into possession of the land described in said Avrit according to the mandate of said writ, unless you see fit to appear at the next term of the circuit court of Pike county and sIioav cause why a peremptory A\rrit of mandamus should not issue,” etc. The sheriff on the 14th day of March, 1905, accepted service of the notice, and waived a copy. At the September term, 1905, the defendant answered the alternative writ, and on the hearing on the evidence during that term the court rendered judgment against the defendant, and adjudged that, upon the issuing of a pluries writ of possession in the case of M. N. Carlisle v. Annie B. Hays, the clerk of the court should issue a peremptory writ of mandamus commanding the defendant, as sheriff, to forthwith execute said writ of possession according to the mandate thereof by putting said Carlisle into the possession of all the land described in said writ of possession.

If it lx; conceded that mandamus is the appropriate remedy, and may be resorted to, to compel the execution of a writ of possession, Avhich question we do not décide, yet the judgment in this case Avas improperly rendered. It must be noticed that at the time the judgment aivarding the mandamus Avas rendered the return day of the Avrjts issued December 31, 1904, and March 13, 1905, had expired. They Avere functus officio. These Avrits are the only ones referred to in the application for mandamus, and the only one on Avhich the dereliction of the sheriff is predicated, and with respect of Avhich relief is prayed. It is too clear for argumentation that the court was Avithout authority at the September term, 1.905, to aAvard a peremptory Avrit of mandamus to the sheriff, commanding him to put the plaintiff in possession under writs that Avere functus. To render sucb judgment Avould be to command the sheriff to do an unlaAvful act. Mandamus will never lie to compel an officer to do an act Avhich, Avithout its command, it would not be lawful for him to do. — Moses on Mandamus, p. 58 ; State v. Judge, 15 Ala. 740 ; Norwood v. Clem, (June 1, 1904) 41 South.- — -and. authorities there cited; Johnson v. Lucas, 11 Hum. (Tenn.) 306. But the court went a boAvshot further than Avas contemplated by the petition or authorized by the evidence in the case, in its adjudication that upon the issuance of a pluries Avrit of possession in the case of Carlisle v. Hays the clerk of the court should issue a peremptory Avrit of mandamus commanding the sheriff to forthwith execute the writ of possession according to the mandate thereof by putting said Carlisle into the possession of all the land described in said Avrit of possession. It Avould seem that this was forecasting the sheriff’s disinclination to serve a writ that was yet to come into his hands, and awarding peremptory mandamus with respect to derelictions on the part of the sheriff that had not occurred and might never occur. We are clear in our opinion that mandamus cannot be awarded in such state of the case. Judgment will be here rendered, reversing the judgment of the circuit court and denying the mandamus.

Reversed and rendered.

Weakley, C. J., and Haralson and Dowdell, JJ., concur.  