Summary
holding that, in computing time to determine whether an act was performed within a specified period of time under the statute of limitations, the first day is excluded and the last day of the period is included
Summary of this case from Cabral v. City of Miami BeachOpinion
October 24, 1950.
Appeal from the Circuit Court, Dade County, N. Vernon Hawthorne, J.
Henry G. Simmonite, Miami, for appellant.
Knight, Smith, Underwood Cullen, Miami, for appellee.
This is a tort action. According to the record it accrued in Dade County, Florida, on the 27th day of October, 1945. Summons ad respondendum in the cause issued out of the Circuit Court of Dade County, Florida, on October 27, 1949, and on the same day was delivered to the Sheriff for service on the defendant. A true copy thereof was served on the defendant-appellee by a deputy sheriff in Dade County, Florida, on October 28, 1949. Plaintiff-appellant filed his declaration in the cause on November 7, 1949, and alleged that he was injured by the defendant-appellee in Dade County, Florida, on "the 27th day of October, 1945, at about 6:30 P.M." The defendant-appellee filed a demurrer to the amended declaration, and a ground thereof was that the plaintiff's cause of action, if any, was barred by the statute of limitations. The trial court sustained this ground of the demurrer and entered a final judgment for the defendant-appellee. The plaintiff appealed.
Counsel for the parties are in accord on the facts reflected by the record. Their point of cleavage is the construction to be placed on the applicable statutory law. Section 95.11, F.S.A., provides for limitations upon actions other than real actions — "Actions other than those for the recovery of real property can only be commenced as follows: * * * (4) Within four years. — Any action for relief not specifically provided for in this chapter. * * *" In the case of Warner v. Ware, 136 Fla. 466, 182 So. 605, we held that the four year period was applicable to tort actions. It appears from the record that on October 27, 1949 Summons Ad Respondendum was delivered to the sheriff of Dade County for service upon the defendant-appellee. Where a declaration in a tort action on its face shows that the action is barred by the statute of limitations, the issue may be raised by demurrer. Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562.
Counsel for the appellant contends that the controlling question presented here is: In computing time within which a thing must be done, is the day on which the initial act occurred excluded in counting the time under the statute of limitations? While counsel for the appellee contends that the sole question for determination here is: Does it affirmatively appear on the face of the declaration that the suit is barred by the statute of limitations?
The general rule for the computation of time accepted and recognized in this jurisdiction is that where an act is to be performed within a specified period of time, the first day is excluded in the computation and the last day of the period is included. See Blanton v. State ex rel. Miller, 156 Fla. 694, 24 So.2d 232; Young v. Young, 152 Fla. 712, 12 So.2d 885; Scarlett v. Frederick, 147 Fla. 407, 3 So.2d 165; Croissant v. DeSoto Imp. Co., 87 Fla. 530, 101 So. 37; Savage v. State, 18 Fla. 970, and other Florida cases. 34 Am.Jur. 206, par. 252, holds that according to the weight of modern authority the day of the accrual of the cause of action is excluded in the computation of the statutory period and the last day thereof is included. The rule supra is approved in 62 Corpus Juris 984, par. 30.
The judgment appealed from is reversed.
ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.