On December 13, 1995, plaintiff-appellant, Patricia A. Rhoades, was involved in an automobile accident with defendant-appellee, John C. Harris II. She filed a complaint against Harris that the clerk of the Hamilton County Court of Common Pleas time-stamped on December 16, 1997. Harris filed a motion to dismiss the complaint or, in the alternative, a motiоn for summary judgment, in which he argued that Rhoades’s complaint was filed outside the two-year statute of limitations set forth in R.C. 2305.10(A).
In rеsponse, Rhoades provided evidentiary materials showing that her attorney had drafted and mailed the complaint with thirty-two cents in postage to the clerk *557 on December 9, 1997. The date the statute of limitations would have run, Deсember 13, 1997, was a Saturday. The next business day was Monday, December 15, 1997. That day, the envelope in which the complaint was mailed was returned to Rhoades’s attorney’s office, marked “refused by addressee” because of twenty-thrеe cents in postage due. After calling the clerk’s office for instructions, Rhoades’s attorney again sent the complaint and the original envelope to the clerk by Federal Express that same day. The complaint was stamped December 16, 1997, even though it had been originally tendered to the clerk no later than Friday, December 12,1997.
The trial court granted summary judgment in Harris’s favor, and Rhoades filed a timely appeal from that judgment. In her sole assignmеnt of error, Rhoades states that the trial court erred in granting Harris’s motion for summary judgment based upon the running of the statute of limitations. She argues that she originally tendered her complaint before the running of the statute of limitations and thаt it would have been timely filed but for the clerk’s refusal to accept it. We fihd this assignment of error to be well taken.
R.C. 2305.03 provides that a civil action can be commenced only within the applicable limitations period set fоrth in R.C. 2305.03 through 2305.22. “A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant * * *.” Civ.R. 3(A). Simply mailing a document does not constitute a filing. It must be actually delivered to and reсeived by the official custodian.
Fulton v. State ex rel. Gen. Motors Corp.
(1936),
Further, the Revised Code requires the clerk to endorse the date of filing on each document filed in a case, and the file-stamped date is presumed to reflect the actual date of filing.
Id.,
at 790-791,
The clerk, as a ministerial officer of the court, has a duty by law to accept and file documents tendered to him or her.
State ex rel. Dawson v. Roberts
(1956),
“It is the duty of the clerk of this court, in the absence of instructions from the court to the contrary, to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is properly prepared and is accompanied by the requisite filing fee. The power to make any decision as to the propriety of аny paper submitted or as to the right of a person to file such paper is vested in the court, not the clerk.” State ex rel. Wanamaker v. Miller (1955),164 Ohio St. 176 , 177,57 O.O. 152 , 153,128 N.E.2d 110 , 110.
Similarly, the Tenth Appellate District has stated that “ordinarily the clerk cannot refuse to accept papers for filing if the determination of propriety of filing constitutes a question of law since only a court can detеrmine the rights of a party.” The court went on to state that if a party presents a paper for filing and the clеrk refuses to accept it, the clerk should indicate the refusal and the reason for the refusal on the docket.
Huntington Natl. Bank v. Miller
(1987),
In this case, the unrefuted evidence showed that the clerk actually received Rhoades’s complaint before the expiration of the statute of limitations. This is not a case where the plaintiff mailed the comрlaint but the court can only speculate as to the time the clerk received it.
Ins. Co. of N. Am., supra; Lambdin v. Knott
(1991),
We are not holding that the сlerk is obligated to accept every document that arrives with postage due. However, the filing in this case wаs accompanied by a large deposit, which was more than adequate to cover the twenty-three сents owed for postage. Further, some courts have held that documents were appropriately deemed to have been filed on the date that the clerk refused to accept them even though they were nоt accompanied by the proper filing fee, a much greater omission than the lack of twenty-three cеnts’ postage.
Huntington Natl. Bank; Ricart N., supra;
see, also,
Pollock, supra,
Judgment reversed and cause remanded.