By the Court,
Carey, J.It is clear from the laws of California offered in testimony and the other evidence in the case, that the judgment upoñ which this suit was commenced in the district court was dormant and could not, from the lapse of time, be enforced in the state of California by execution. Indeed this point has not been contested. The questions then arise, can an action be maintained upon a judgment; and if so, was the action commenced in the district court in this ca.se barred by the statutes of limitations of California or Wyoming ? A judgment is a contract of record, and falls under the head of contracts by specialty: Chitty on Contracts, 2; 1 Parsons on Contracts, 7. It appears to be settled by numerous decisions that a judgment is such contract as may be made the basis of an action in the jurisdiction where recovered. Though adverse decisions may be found, yet Freeman on Judgments says that the true rule is that an action may be brought on a judgment and that no other reason need be stated for bringing such suit than that the judgment remains unpaid. The right to bring the action is not barred nor suspended by the issuing of an execution, nor because the right to take out an execution exists.
This was the rule at common law, and has been adopted by most of the states: Freeman on Judgments, 432 et seq.; 4 Conn. 402; 28 Id. 112; 20 Johns. 342; 9 Id. 26; 16 Id. 372. It has been expressly decided in the California case referred to that an action may be maintained in that state on a judgment, and that, too, after the right of execution is gone by lapse of time. It is contended that this *233decision was based upon a statute of California now repealed, but on a careful examination of the decision we find the decision is not based on a statute, but on the rule as it existed at the common law, and the dictum of- the case of Mason v. Cronin, 20 Cal. 211, supports the same rule.
The next question presented is: Was this action barred by the statutes of limitations of California or Wyoming ? Section 4359 of the laws of California, 1850-1854, provides that: “An action upon a judgment or decree of any court of the United States, or of any state or territory of the United States,” can only be commenced within five years; but section 4364 of the same laws provides that if, after a cause of action shall have accrued against a person, he depart the State, the time of his absence shall not be part of the time limited for the commencement of the action. Section 19 of the code of civil procedure, laws of Wyoming, 1873, makes the provisions of the laws of California cited applicable in this case.
The supreme court of California in the case of Mahan v. Cronin, 20 Cal. 211, held that the portion of said section 4359 cited was applicable to judgments recovered in the state of California. It cannot be contended under the evidence in the trial of the case-in the court below, that the defendant Price was in the state of California between the time of the rendition óf the judgment and the commencement of this action in the district court for the period of five years, or for periods of time that would aggregate five years.
It is true that it is shown that his absence was caused by his being employed in the military service of the United States, and the court is referred to section 4, art. 2, and section 19, art. 11, of the constitution of the state of California. The first of the references provides that for the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his employment in the service of the United States, and the second reference provides that absence from the state, on business of the state or of *234the United States, shall not affect the question of residence of any person.
We cannot see how these constitutional provisions affect the question. It is not a question of political rights, nor of residence, but a question of presence in or absence from the state, and the provisions of the constitution cited have no reference whatever to the statutes of limitation under consideration. To obtain the advantage of the statutes of limitation of California, one need not be a resident of the state, but it is necessary for him to be in the state, and subject to the process of the courts, for the time limited in the statutes. Nor does the being a resident and citizen of the state give such resident and citizen any advantage under the statute of limitation not possessed by the non-resident. If a resident or non-resident, after the right of action has accrued against him, leave the state, the statute of limitation ceases to run until his return to the State.
Reference is made to the case of Brown v. Crowny, 30 Cal. 621, and Mause v. McAtee, but both of these cases have' reference to the time in which execution may issue to enforce a judgment in the state of California, concerning which no question is raised in this case.
The remaining question presented for the determination of this court is, was the action barred by the previous action and judgment (case Bonnifield v. Price, decided at the last term of this court)? We are of the opinion that the action and judgment in the previous case were properly held by the district court not to be a bar to this action. It is true the previous suit was commenced on the same judgment as the case under consideration, but it appeared upon the face of the petition in the previous action that the action was barred by the statute of limitations. This defect in the petition was taken advantage of by a demurrer, and judgment was rendered on the demurrer. In the case at bar the petition contained an averment showing that the action was not barred by the statute of limitations.
No one of the questions presented in the previous case *235was again adjudicated in the case at bar, nor was the case in the previous action determined upon its merits. A judgment on a demurrer to a petition is only conclusive of those questions necessarily determined by such demurrer. The effect of the judgment and the demurrer was merely to determine that the petition in the former action did not state sufficient facts to Constitute a cause of action. In the action at bar the petition does state facts sufficient to constitute a cause of action, and the plaintiff was not estopped from prosecuting the action by the previous action and judgment.
Judgment of the district court reversed and cause remanded for new trial.