By the Court,
Thomas, J.The petition in this cause alleges that the plaintiff, Bonnifield, did on December 14, 1861, recover judgment in the district court of the. ninth judicial district of the state of California, against the said George P. Price and one Tyson, for one thousand seven hundred and sixty-five dollars and seventy-one cents, and that the same still remains unpaid and in full force and effect. To the petition the defendant interposed a special demurrer, for the reason “that the cause of action did not accrue within five years prior to the filing of the petition;” and the sustaining of this demurrer by the district court sitting in and for Laramie county, is the principal error assigned in the petition filed in this court. While in some states the statutes especially provide that a defendant can avail himself of the statutes of limitation only by plea or answer, yet we consider the rule to be well established in this territory, and in some states with .similar laws to ours, that where *177from the face of the petition it is apparent, without any further showing, that the statutes of limitation has commenced to run, that a defendant may take advantage of the same by a special demurrer.
In this case, upon the decision of the demurrer, there was no legal evidence whatever, before the court, neither could there have been as to the provisions and effect of the statutes of California. The petition showed, upon the face of it, that the claim was founded upon a foreign judgment, and that that judgment had been recovered more than five years prior to the commencement of this action. In our opinion, therefore, the district court committed no error in sustaining the said demurrer.
Another error assigned is, the refusal of the district court to allow the plaintiff to file his amended petition. We believe that, where a demurrer has either been sustained or overruled, that the question of allowing either party to amend is solely in the discretion of the court. And even were the rule fully established, which we do not consider it to be, that an appellate court may reverse a decision of a court below, solely upon the grounds of error committed by that court in a matter entirely within its discretion; we do not perceive sufficient error in this particular to interfere with that decision.
The judgment of the district court is affirmed.