¶1dissenting:
¶2I respectfully dissent from the decision expressed in the majority opinion. I do not agree that the dismissal by the common pleas court barred future actions under Code, 55-2-18, by virtue of the doctrine of res judicata. It is true that normally a dismissal based on the running of the statute of limitation is a final judgment on the merits and res judicata. In the instant case, however, the basic ruling of the common pleas court was that Code, 55-2-18, did not apply. This could only have been on the grounds that the initial action was a nullity because commenced against a deceased defendant. That did not reach the merits of the case and could not be res judicata. Since the dismissal did not reach the merits of the case, it could not have been pled in bar of an action or suit. Code, 55-2-18, provides in part that an action may be commenced within one year after the running of the otherwise applicable statute of limitations when it has been dismissed “by reason of any other cause which could not be plead in bar of an action or suit.”