dissenting:
With no definitive guidance from the Supreme Court of Appeals of West Virginia in this Erie -controlled case, the majority holds that the West Virginia saving statute applies to an action initially filed in a foreign state as well as to actions originally filed within the State of West Virginia. In doing so the majority turns its back on the general rule which has been followed in an almost unbroken line of decisions of both state and federal appellate courts. Andrew v. Bendix Corp., 452 F.2d 961 (6 Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1773, 32 L.Ed.2d 119 (1972); Riley v. Union Pacific Railroad Company, 182 F.2d 765 (10 Cir. 1949); Estate of Tuckman v. Estate of Cottle, 175 F.2d 775 (10 Cir. 1949); High v. Broadnax, 271 N.C. 313, 156 S.E.2d 282 (1967); Morris v. Wise, 293 P.2d 547, 55 A.L.R.2d 1033 (Okl.1956). See 51 Am.Jur.2d Limitation of Actions § 306 (1970); Annot., 55 A.L.R. 1038 (1957). The rule consistently followed in these cases was succinctly stated by the Sixth Circuit in Andrew v. Bendix, supra, where the court, in construing the Ohio saving statute, made the following observation:
In the light of logic and the applicable decisions from other jurisdictions we conclude that the Supreme Court of Ohio would hold, as we therefore do, that Ohio Revised Code § 2305.19, which permits the commencement of a new action when a former timely filed suit on the same cause has been dismissed otherwise than on its merits within one year of such commencement, has application only where the first action had been filed within the State of Ohio, and specifically that it is without application where the first suit was filed in a federal or state court in another state. (Emphasis added).
452 F.2d at 963, 964.
The majority suggests that in none of those cases is there any reasoned explanation for such a rule nor any rational basis for the distinction between an action initially filed within the forum state and one filed in a foreign jurisdiction. As recently as this past November the Supreme Court recognized that a plea of the statute of limitations is a “meritorious defense, in itself serving a public interest”, United States v. Kubrick (November 28, 1979), — U.S. —, 100 S.Ct. 352, 62 L.Ed.2d 259, and observed:
Statutes of limitation, which “are found and approved in all systems of enlightened jurisprudence.” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that “the right to be free from stale claims in time comes to prevail over the right to prosecute them.” Order of Railway Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.
100 S.Ct. at 357. The judgment of the West Virginia legislature, as expressd in West Virginia Code § 55-2-12, is that two years is a reasonable period within which an action for a personal injury should be filed in this state. Despite that legislative judgment and the validity of the considerations recognized by the Court in Kubrick, the rule adopted by the majority would permit a party to file an action in any one of the other forty-nine states without semblance of jurisdiction, venue, or personal service,1 *48and thereby extend the West Virginia period of limitations indefinitely, since the saving statute permits the new action to be filed “within one year after such * * * dismissal [of the original suit].” Such a rule is hardly consistent with the principle that a statute of limitations is a “statute of repose.”
The support for its position which the majority gleans from Tompkins v. Pacific Mut. Life Ins. Co., 52 W.Va. 479, 44 S.E. 439 (1903), and Litten v. Peer, 156 W.Va. 791, 197 S.E.2d 322 (1973), escapes me. As the majority notes, in Tompkins the first action had been commenced in a federal court in West Virginia and had been dismissed for want of jurisdiction. In holding that the saving statute permitted the filing of a second action in a West Virginia state court within one year after the dismissal of the federal action, the Supreme Court of Appeals was doing nothing more than applying the general rule. Similarly, in Litten, the initial action had been filed in the federal court for the Northern District of West Virginia and, following dismissal, the second action was filed in the state court within the period allowed by the saving statute. Again, the West Virginia Court did no more than apply the general rule to the case before it. Excising a statement from that opinion that “[t]he extension granted by this provision [the saving statute] of our law applies whether the first action was in another state court on in a federal court,” 197 S.E.2d at 325, the majority concludes that had the original action in Litten been filed in another state the West Virginia Court would have held the saving statute applicable. I can only observe that in the context of the case which was before the Court in Litten, my brothers have parsed this sentence in a strange and novel fashion. To me, the Court was merely stating the general rule which applies the saving statute to an action initially commenced in either a state or federal court within the geographic boundaries of the forum state. I would affirm the district court’s order of dismissal.
. The majority states that the defendant was informed of the Ohio action and received a copy of the complaint. While I am unable to find this information in the record, I would not suppose that such informal notice would play any operative role in the rule adopted by the majority. In any event, I think it reasonable to assume that informal notice of the filing of an *48action in a West Virginia court would be much more likely to come to a West Virginia defendant than the filing of an action against him in a distant jurisdiction, e. g. Hawaii or Alaska.