(dissenting.) I am unable to-concur in the opinion of a majority of this court in this case, and, as the question presented is an important one, I deem it proper to express my views upon it. The plaintiff commenced an action in the circuit court of Hand county to recover of the defendant $45,800, interest, costs, etc. The summons and complaint were duly served, and when the time for answering expired, no copy of answer, demurrer, or notice of retainer having been served, a judgment was rendered in the said circuit court of Hand county for the amount claimed. Some time prior to the expiration of the time for answering, the defendant filed in the office of the clerk of the court for said Hand county a petition for the removal of said cause to the United States circuit court for the district of South Dakota, and also filed therewith a bond in the usual form. Neither the petition nor bond was presented to the state court for its acceptance or action, nor were they brought to the attention of the state court prior to the rendition of said judgment, and said court had no knowledge or information of their existence when he rendered said judgment. After the entry of the judgment, the defendant moved to vacate and set the same aside, bn the ground that, when the judgment was rendered, the case had been removed to the federal court, and the state court had no jurisdiction to enter it, which motion was denied.
The learned counsel for the appellant contends that the filing of said petition and bond in the office of the clerk of the circuit court of Hand county had the effect of removing the cause to the *602United States circuit court, and that the proceedings in the state court taken subsequently to such filing were coram non judice, and void. The learned counsel for the respondent insists that the filing of the said petition and bond in the office of the clerk of the state court did not have the effect of removing said cause, or of arresting the jurisdiction of the state court, and that,, until the petition and bond were presented to the state court for its action thereon, such state court retained jurisdiction of the cause, and the judgment, therefore, rendered by it, was legal and valid.
The construction given to the section of the act of 1887, relating to the removal of actions, contended for by the counsel for appellant, and adopted by the court, does not seem to me lo be the proper construction of that section. A too limited and restricted meaning is given to the clause “file in the suit in the state court” by holding that it means simply a filing of the petition and bond in the office of the clerk of the state court. In my judgment, the term “file,” as there used, in connection with the clause “it shall then be the duty of the state court to accept said petition and bond, and proceed no further in said suit,” means a presentation of the same to the state court for its acceptance or action. The term "file” is there used in its larger and more comprehensive sense, of presenting or exhibiting the petition and bond to the court, as well as the mere placing it among the records of the cause. And. Law Dict. p. 459. Two objects are to be accomplished by the petition and bond. One is to terminate the jurisdiction of the state couxi, and the other is to remove the cause to the federal court. Until the petition and bond are brought to the attention of the state court, and it is requested to accept the same, and proceed no further, it is the duty of the state court to proceed. It has jurisdiction to proceed until its jurisdiction is arrested by a proper proceeding, and it is not only authorized to proceed, but it is its duty to do so, until the petition and bond are presented to the court. The state court, upon the presentatiqn to it of the petition and bond, with the request that it accept the same, surrender its jurisdiction, and proceed no further in the suit, has an important dxxty to perform. It is not merely perfunctory, but involves a careful examination of the pe*603tition and bond, and of the law applicable thereto, in order that it may decide and determine for itself whether or not it will accept the petition and bond, and surrender its jurisdiction, or proceed with the cause. The party opposing the removal has the right, until a proper case is made for the removal, to proceed in the cause in the state, court; and hence the state court must determine the question of whether he shall be permitted to so proceed, or whether the court will surrender its jurisdiction, and proceed no further. The right to so decide must exist of necessity. When the state court is requested to yield its jurisdiction, on statutory grounds, of a cause of. which it has jurisdiction, it must examine the documents presented to it, and determine whether or not they comply with the statute, and present a case calling for the surrender of its jurisdiction. How. can it otherwise know whether it is its duty to yield its jurisdiction, or proceed with the cause? Whether to consider the case still pending or as removed to the federal court? The act of congress, in my judgment, contemplates a respectful presentation of the petition and bond to the state court for its acceptance and action. The state court must therefore be called upon to act on the petition and bond before the case can be transferred to the federal court. “Having once acquired jurisdiction, the state court may proceed until it is judicially informed that its power over the cause has been suspended.” Insurance Co. v. Pechner, 95 U. S. 183. To be “judicially informed’ is to be informed as a court by the proper proceedings taken in court, not in the office of the clerk of the courts. It is not sufficient, therefore, to merely file the petition and bond in the office of the clerk of the court, or to apply to the judge of such court. It is the court that must be judicially informed; it is the court that must accept or decline to accept the petition and bond.
The state court may, as it often does, upon an examination of the petition and bond, in connection with the pleadings and records in the cause, decide that under the law they are insufficient to require it to surrender its jurisdiction, and it proceeds with the cause. In such case the petitioner must either defend in the state court, or permit the cause to proceed, and defend only *604in the federal court, and rely upon the appellate court of the United States to reverse the judgment of the state court in case it shall have erred in retaining the cause. This is the petitioner’s only remedy, and it is therefore important to him that the petition and bond be presented to the state court, and its favorable action secured, in order that he may not be required to proceed further in that court. The proceedings that may be taken are clearly stated by Chief Justice Waite, in Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799. He says: “A state court is not bound to surrender its jurisdiction of a suit on petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer * * *” All issues of fact made upon the petition for removal must be tried in the circuit court, but the state court is at liberty to determine for itself whether, on the face of the record, a removal has been effected. If it decides against the removal, and proceeds with the cause, notwithstanding the petition, its rulings on that question will be reviewable here after final judgment, under section 709 of the Revised Statutes. Removal Cases, 100 U. S. 457; Railroad Co. v. Mississippi, 102 U. S. 135; Kern v. Huidekoper, 103 U. S. 485; Railroad Co. v. Koontz, 104 U. S. 5; Railroad Co. v. White, 111 U. S. 134, 4 Sup. Ct. Rep. 353, and in Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. Rep. 692. Mr. Justice Harlan, speaking for the court, says: “It has been repeatedly held, particularly in Stone v. South Carolina, 117 U. S. 435, 6 Sup. Ct. Rep. 799, following substantially Dailroad Co. v. Koontz, that a state court is not bound to surrender its jurisdiction of the suit on petition for removal until a case has been made which on its face shows the petitioner has a right to the transfer. * * * We say ‘upon its face,’ because the state court is only at liberty to inquire whether on the face of the record a case has been made which requires it to proceed no further.” It seems to me these decisions clearly indicate that, in the opinion of that court, the application for removal must be made to the state court, as a court which must first pass upon the sufficiency of the petition and bond, and determine whether or not it will proceed further in the cause. The federal court, on a motion to remand the cause to the state court is charged with the like duty *605of determining for itself whether it will retain the case or remand it, subject to the same liability to have its decision reversed and its proceedings set aside by the appellate court, as was done in the case of Crehore v. Railway Co., supra. When the state court declines to surrender its jurisdiction, and proceeds with the cause, and the federal court takes and retains jurisdiction, the case may proceed in both courts, as was the case in The Removal Oases, 100 U. S. 457, subject, of course, to" the final determination by the appellate court as to which court has proceeded legally.
In this connection I desire to call attention to the fact that, while a removal law containing provisions as to the filing of the petition and bond “in the suit in the state court” and the duty of the state court “to accept the same and proceed no further in the suit,” similar to those found in the law of 1887, has been in force since the organization of the federal government, the uniform practice seems to have been to present the petition and bond to the state court as such for its acceptance and action. That a motion was made to the court to accept the petition and bond, and proceed no further with the suit, and either granted or denied, is a stereotyped expression in nearly all the removal cases — both state and federal — that I have examined. This uniform practice under a statute for so long a period certainly is entitled to great weight in construing it. I think, in the view of this uniform practice, Judge Key, of the United States court, district of Tennessee, was justified in a decision made in December, 1891, in saying: “But it 'would be something remarkable for a party to go to the state clerk in vacation, file his application for removal, and take his suit into this court, without presenting the matter to the state court at all, or giving it an opportunity to accept the petition and bond as the law prescribed.” Hall v. Chattanooga Agricultural Works, 48 Fed. Rep. 601. The view I have taken is supported by several federal decisions that are directly in point. Mr. Justice Kellam, in the majority opinion of the - court, has commented upon these decisions; but it seems to me he has failed to give them the consideration to which they are entitled by réason of the learning and long experience upon the federal bench of the judges who made them. In the case of Shedd v. Fuller, 36 *606Fed. Rep. 609, the proceeding's for removal were the same as in the case at bar. The petition and bond were filed in the office of the clerk of the state court, but were not presented to the court for its acceptance. As the opinion is short, I give it in full: “Gresham, J., (orally.) The counsel for one of the defendants in this suit presented to the clerk of the state court in which the suit was pending a petition and bond, in the usual form, for its removal to this court; and, upon the request of the counsel,' he was furnished by the clerk with an authenticated copy of the record which was filed in this court. It is admitted that the petition and bond were not presented to the state court for its action. The removal act of March 3, 1887, as well as the prior acts upon the same subject, provides that a party desiring to remove a suR from a state court to a circuit court of the United States shall file his petition and bond in such suit in the state court, wh en it shall be the'duty of that court, if the petition and bond be sufficient to satisfy the statute to accept both, and proceed no further in the case. The right of removal is purely statutory, and the jurisdiction of the state court remains undisturbed until a proper petition and bond are presented to that court for its judicial action. It is not sufficient to present the petition and bond to the clerk, who is the court's, mere ministerial officer. While it is clear that the right of removal does not depend upon the action or nonaction of the state court, it is equally clear that the state court cannot be deprived of its right to decide for itself upon the sufficiency of the petition and bond. The presentation of a proper petition and bond to the state court for its action is a jurisdictional prerequisite. Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. Rep. 799. Motion to remand sustained.” Equally clear and important is the decision of Judge Nelson, of the Minnesota district, in Roberts v. Railway Co., 45 Fed. Rep. 433, (decided in March, 1891.) I give this decision in full also: “Nelson, J. This is a motion to remand made' by the plaintiff. The correct practice is indicated by Judge Gresham in Shedd v. Fuller, 36 Fed. Rep. 609. The petition should be presented to the state court, and opportunity given that court to act. In this case the petition was presented to the clerk of the state court, and filed by him, *607and a certified copy immediately made and given the defendant. The court never had its attention called to the petition. This is not the proper practice indicated by the statute granting removals from the state court, or recognized by the United States supreme court. Motion to remand granted.” In October, 1891, the case of Williams v. Association, 47 Fed. Rep. 533, was decided by Judge Gone, of the northern district of New York. In that case the petitioner not only filed his petition and bond in the office of the clerk of the state court in time, but he presented them to the judge in chambers, who declined to act upon them as a judge. It was insisted in that case, as in the case at bar, that, the party having filed his petition and bond in the clerk’s office in time, the case was removed; but the learned judge held the case was still in the state court, and had not been removed therefrom, and the judge says in his opinion: “This motion turns, therefore, upon the question whether or not the presentation upon the 27th of June to the judge, and the subsequent filing in the clerk’s office, was a compliance with the federal statute. Is it sufficient to present the petition and bond, when no court is in session, to a judge of the state court, sitting in his office, and subsequently to file them in the office of the clerk? Manifestly not. It is the state court which is authorized to act upon the petition, and not a judge or clerk of the state court. Shedd v. Fuller, 36 Fed. Rep. 609; Stone v. South Carolina, 117 U. S. 435, 6 Sup. Ct. Rep. 799; Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. Rep. 692. As the case is still in the supreme court of the state of New York, this court has no jurisdiction to grant the motion.” The case of Hall v. Agricultural Works, 48 Fed. Rep. 599, has already been referred to, but, as Judge Key in that case defines what is meant by “filing in the suit in the state court,” I quote from it again. He says: “In cases which are sought to be removed, * * * the petition must be filed in the state court. It appears from the record that, since the adjournment of the last term of the state court, a petition for removal and bond have been prepared and filed, but there has been no session of the court since, so that the petition and bond could be presented to the state court as contemplated by the statute. * * * Moreover, *608the cause is not removed until the petition and bond shall be presented to the state court for acceptance. Then, and not until then, is the state court required to determine whether it will proceed further or not.” Opposed to these clear and able decisions is a decision made by Judge Seiras, of the Iowa district, in Brown v. Murray, Nelson & Co., 43 Fed. Rep. 614. But, though this decision was made prior to those of Judges Nelson, Coxe, and Key, it does not seem to have met with the approval of those judges, and certainly is opposed to that of Judge Gresham. In the case of Noble v. Association, 49 Feb. Rep. 337, decided by Judge Wallace, referred to in the majority opinion, as I understand the facts of. the case, the question now presented to this court was not involved. Since that decision was made,' the important cases of Roberts v. Railway Co., 51 N. W. Rep. 478, in. the supreme court of Minnesota, and Railroad Co. v. Bloom, 20 S. W. Rep. 133, in the supreme court of Texas; have been decided, and the construction of the act of congress, as given' by Judge Gresham, Nelson, Coxe, and Key, adopted. No reference is made in either of those cases to the opinion of Judge Wallace, although the decisions were made subsequently to his decision. The proceedings in the case of Roberts v. Railway Co., supra, decided by the supreme court of Minnesota' in March, 1892, are nearly identical with those in the case at bar. A petition and bond were filed in the clerk’s office, but not presented to the court. The case proceeded in the state court, and judgment was rendered for the plaintiff for about $22,000, motion made to set it aside, and denied, and an appeal taken to the supreme court, where the judgment of the court below was affirmed. See, also, Carswell v. Schley, 59 Ga. 17; Angier v. Railway Co., 74 Ga. 634; McWhinney v. Brinker, 64 Ind. 360; Blair v. Manufacturing Co., 7 Neb. 146; Bank v. Adams, 130 Mass. 431; Stone v. Sargent, 129 Mass. 503.
The court, in the majority opinion, seems to find a reason for its construction of the act of congress in the fact that the court in some states might not be in session in time to enable the petitioner to effect a removal of his cause. It is admitted that no such difficulty is likely to occur in this state, as the circuit judge is authorized to act upon the petition and bond at any time and *609in any place within his circuit as a court. No difficulty seerus to have occurred in the Texas case, although no court was in session until after the time for answering had expired. An answer, however, was filed with the petition and bond in time, if the court was subsequently called upon to act in the case. This was held proper. It is quite probable that, if the petitioner desires to retain his right to move to dismiss the action for want of proper service, or to make any other motions, a state court, when properly applied to, or a judge thereof, would make an order staying proceedings, and extending the time for answering until application could be made to the state court, as the law contemplates, for an order of removal; but, be this as it may, the federal courts seem to have had no apprehension upon this question. If the party should fail in securing a removal, no natural or equitable right would be violated. The right to a removal is a purely statutory right, and is often lost by a failure of a petitioner to comply with the law.
Some importance is given in the opinion of the majority of the court to the fact that the respondent and its attorneys had information that the petition and bond had been filed in the clerk’s office; but, in my view of the case, this is an entirely immaterial fact, as much so as would a knowledge of the fact that they had been prepared, and the party intended to file them, when not filed in time. If the view of the court is correct that the filing of the petition and bond in the clerk’s office removed the case, then knowledge of the adverse party or want of knowledge is immaterial. If such filing in the clerk’s office does not remove the case until application is made to the state court, then knowledge or want of knowledge is equally immaterial. I am of the opinion, therefore, that the counsel for the respondent proceeded properly in taking judgment. It was not his duty to call to the attention of the court the fact that such petition and bond had been filed. He was not moving for a transfer of the cause to the federal court, and he had no duty to perform in regard to it until the petitioner *610had taken the proper proceedings to effect a removal. I think his conduct was strictly professional, and I doubt if he would have been justified in proceeding otherwise than he did. In my opinion, the judgment of the court below should be affirmed.