Opinion
No. 63-360.
January 7, 1964. Rehearing Denied February 12, 1964.
Appeal from the Circuit Court for Dade County, Pat Cannon, J.
Klein, Moore Kline and Morton P. Brown, Miami Beach, for appellant.
Carr Warren, Miami, for appellee.
Before BARKDULL, C.J., and TILLMAN PEARSON and HENDRY, JJ.
This is an appeal by the plaintiff from a summary final judgment in favor of the defendant based upon the trial judge's holding that the plaintiff failed to commence this action within one year from the date of this court's reversal of a prior judgment for the plaintiff.
Section 95.06 Fla. Stat., F.S.A., provides:
"If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal or writ of error, the plaintiff, or, if he die and the cause of action survives, his heirs or representatives, may commence a new action within one year after the reversal." [Emphasis supplied.]
The trial judge held that the one year period began to run from the date of the filing of our decision of reversal with the clerk of this court. We hold that the trial court was in error in that the one year period began to run from the date of the issuance by this court of its mandate. Computing the time in accordance with this holding, we find that the new action was timely commenced.
See State ex rel. Hawley v. Coogan, Fla.App. 1957, 99 So.2d 243; 11 U. of Fla. Law Review pp. 6-8.
Reversed and remanded with directions to reinstate the cause.