Being and Nothingness: Commencement and the Application of Ohio Civil Rules 3(A) and 4(E)
As a general rule, a civil action comes into existence at the moment of commencement, and it ceases to exist as an action when the court journalizes a final judgment that adjudicates the rights of all of the parties and determines all of the claims involved in the action. Because the action comes into existence with commencement, it is important to define that precise moment in time when the action is deemed to have commenced. That is the task of Civil Rule 3(A), which states: "A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing." Unfortunately, for reasons that are more historical than rational, this formula links the relatively simple concept of commencement (the filing of the complaint with the court) to the acquisition of jurisdiction over the person of the defendant; this linkage has produced a number of unnecessary complications. These complications will be discussed in some detail in subsequent sections of this Article, but is must be emphasized here that the approach to these problems, and the correct solution to them, cannot be fully understood unless one first grasps the basic concept that a civil action, as such, must have a real, albeit incorporeal, existence. With this in mind, the Article begins by discussing commencement in relation to the statute of limitations in Section II. Section III walks through the elements of necessary for commencement, and Section IV covers the date of commencement. Then Section V lays out the defense of failure of commencement, and Section VI explains the appropriate judgment for when the challenge is successful. Section VII helps illuminate the consequences of a failed commencement, and Section VIII rounds out the discussion with a brief overview of the appellate review options available.
J. Patrick Browne, Being and Nothingness: Commencement and the Application of Ohio Civil Rules 3(A) and 4(E), 33 Clev. St. L. Rev. 245 (1984-1985)