This case is before the Court on writ of error authorized by Section 4516 C. G. L. See South Florida Lumber Supply Co. v. Read, 65 Fla. 61, 61 So. 125. The parties will be referred to hereinafter as plaintiff and defendant as they appeared in the lower court. The record shows that the plaintiff obtained a judgment *Page 857 against the defendant in the Circuit Court of Broward County, Florida, for the sum of $50,000.00, and a writ of execution issued thereon and the same is now outstanding and is in the hands of the sheriff of said county and a return thereon by the sheriff has not been made.
A writ of garnishment issued on the aforesaid judgment and was served on Hollywood, Inc., and an answer made by the aforesaid garnishee admitted a contingent indebtedness to the defendant. The contingency referred to in the answer was based on the possible sale of described real estate for a price named or stated in the contract existing between the garnishee and defendant and is fully set out in the answer of the garnishee. The legal sufficiency of the answer as made by the garnishee was not questioned nor the facts set up therein disputed.
While the writ of execution was outstanding and in the hands of the sheriff, the plaintiff applied to the court and obtained what is referred to by counsel as a special writ of execution based on the judgment, supra, and the property set out and described in the answer of the garnishee was levied upon thereunder and the same is being advertised for sale by the Sheriff of Broward County. The defendant, under the provisions of Section 4516 C. G. L., moved the lower court for a stay of the special writ of execution and the same was by the lower court denied. The second motion for a stay order was made and by the lower court denied and from this order a writ of error was taken and an appeal perfected to this Court.
One of the first contentions made is that the order denying a stay order of the special writ of execution is a mere brutumfulmen and void ab initio because the lower court was without authority to issue a special writ of execution at a time when the original writ of execution previously *Page 858 issued on the aforesaid judgment was outstanding and then in the hands of the Sheriff of Broward County, Florida. Counsel for plaintiff contend that the special writ of execution is legally sufficient to sustain a levy and sale thereunder of the "intangibles" described in the answer of the garnishee and the lower court's ruling is sustained by Section 5293 and 5294 C. G. L., and authorities cited in their brief.
Section 4506, Compiled General Statutes, provides that writs of fieri facias upon judgments shall issue upon the request of the plaintiff or his agent or attorney. Section 4509 provides for a levy and sale under execution on property, viz.: "Lands and tenements, goods and chattels, equities of redemption in real and personal property and stock in corporations." It appears that the property levied upon and now being offered for sale under the special writ of execution could be levied upon and sold on the writ of execution referred to in Section 4509.
It is asserted that Sections 5293 and 5294, Compiled General Laws, authorizes the issuance of a special writ of execution. The record fails to show a substantial compliance with either of these sections and the special writ of execution so issued was erroneous and unauthorized and a mere brutem fulmen. See Watkins, et al., v. Johnson, 139 Fla. 712, 191 So. 2; Kroier v. Kroier, 95 Fla. 865, 116 So. 753.
*Page 859The order appealed from, in lily opinion, should be reversed.