dissenting. The twelfth section of the judiciary act, which relates to the removal of causes from the State to the federal courts, provides that if the defendant, among other things to be made apparent, “ shall, at the time of entering his appearance in such State court, file a petition, etc., it shall then be the duty of the State court to accept the surety and proceed no further in the cause.” . The right of removal, however, is purely statutory, and when the defendant attempts to exercise it he must show that he has complied with the law in its requirements. He must at the time of entering his appearance, which is the first step, file his petition; and the question which is suggested, in limne, on this appeal, is whether the defendants’ appearance was entered, in this action, in the manner provided by the rules and practice of this court. It is not pretended that any thing more was done on that subject than the service of "a notice of retainer on behalf of the defendants, and the presentation of the petition containing a statement “ that the petitioner does now enter his appearance in this action, but has not done so before.” The notice of retainer, however, was not claimed by the defendants to be an'appearance. The defendants aver their appearance when the petition was signed or presented, and not before. It is not pretended either that any rule was entered by the defendants on the subject, either on their own behalf, or by the plaintiffs’ attorney, under Rule 14 of this court. The appearance of the defendants was not entered, therefore, when the petition was presented. Redmond v. Russell, 12 Johns. 153; Norton v. Hayes, 4 Den. 245; Bristol v. Chapman, 34 How. 141; Field v. Blair, 1 Code R. N. S. 292; Durand v. Hollins, 3 Duer, 686; Cooley v. Lawrence, 5 id. 605. See also Fairchild v. Durand, 8. Abb. 305, note.
In Bristol v. Chapman the defendant went into court at special term, and caused his appearance to be entered in the minutes of the court. The appearance was held to be irregular. The court said, Morgan, J., delivering the opinion : “ The rules of this court *202have prescribed the manner in which the defendants may appear, and what shall be deemed an appearance. This is by service of notice of retainer,'on filing which the defendant may doubtless enter his appearance in the clerk’s office, and at the same time file his petition.”
In Norton v. Hayes it was held that notice of ■ retainer was not “entering his appearance” within the terms or meaning of the act of congress, but that entering an appearance with the clerk at the time of filing the petition was a compliance, and Beardsley, J., said these being done at one and the same time, the application for the removal was made in due season. The case of Redmond v. Russell, supra, was cited by him to sustain the proposition just stated. In the latter case Spencer, J., said: “This is not a case in which the comity of the court is to be exercised; if the' defendant is not strictly entitled to have his cause removed, Ave are bound to maintain our jurisdiction. The plaintiff has as strong a claim to have his cause retained here as the defendant can have to remove it. The whole point turns upon the question when did the defendant enter his appearance.” The court thereupon declared that the entering an appearance and filing the petition are to be simultaneous acts.
In Durand v. Collins it was held that the execution of an under-' taking upon arrest was not, in theory or in fact, an act done in court; that the party’s appearing by the filing of special or common bail, which prevailed prior to the Code, had no application to proceedings under the Code, and that no appearance was formally or actually entered in the action until the defendant entered his appearance Avith the clerk of the court, which he had done at the time he filed his petition to remove the cause. In Cooley v. Lawrence, the question, What is an appearance in a State court ? is considered somewhat elaborately; and it is said that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance; and, further, when such submission has once been made it cannot be retracted. The appearance of' the defendant in that case was declared perfected by his submission to the court of a material question upon affidavits and argument, namely, the continuance of an injunction against him.
The result of these considerations is, that in order to enable a defendant to remove his case from this court to the federal court, *203he must enter his appearance according to the rules and practice of this court, and at the same time file, or at least present, his petition. The defendants not having entered such an appearance were not regular in their proceeding to remove the cause, and the motion in the court below was properly decided. If the defendants claimed that the service of a notice of retainer was an appearance within the act of congress, under the practice which prevails in this court, then their application was too late, as it was not made until several days after such notice was served. They make no such claim. They insist, on the contrary, as already suggested that it was not an appearance, and rely, therefore, on the incident of the proceeding to remove indicated by the statement “they-now enter their appearance ” contained in their petition.
The petition was not, nor was any thing contained in it, an appearance such as contemplated, nor did it amount to an appearance. It was of no greater significance than the service of a notice of retainer—which, for the general purposes of an action, is, under our Code, a sufficient appearance — or of the execution of an undertaking, which, as we have seen, is not an appearance. It-was not entering an appearance, either in theory or in fact, and was, in form, a proceeding unknown, and, by analogy to the case of Bristol v. Chapman supra, irregular.
It follows, therefore, that the defendants’ proceedings were premature, and the order made at Special term should be affirmed.
Order reversed.