dissenting: I£ the defendant, S. R. Smith, ever had any right to remove this suit to the Federal Court for trial after judgment by default was entered against him, which may be doubted, I think he has clearly waived it on the facts of the present record.
In the first place, the right of the nonresident defendant to have the default judgment set aside comes froin C. S., 492, which provides that, where service is obtained by publication, the defendant may, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof and within five years after its rendition, on such terms as are just. There is nothing in this statute which allows the defendant twenty days to answer after the judgment is set aside; and he is not entitled, as a matter of right, to have the judgment vacated, except “upon good cause shown”; and then he is permitted to defend “on such terms as are just.” Page v. McDonald, 159 N. C., 38; Turner v. Machine Co., 133 N. C., 381.
The case of Harter Township v. Kernochan, 103 U. S., 562 (26 L. Ed., 411), is not a controlling authority for the defendant’s position in the case at bar, for in the Kemochan case the Supreme Court of the United States was dealing -with a statute of Illinois which is different from ours in that it provides: “The person so petitioning may appear and answer the complainant’s bill; and, thereupon, such proceedings shall be had as if the defendants had appeared in due season and no decree had been entered.” Thus the two statutes under consideration, the one in the Kemochan case and the one here, are quite dissimilar. There is no provision in our statute that when a default judgment is vacated, such proceedings shall then be had as if the defendant had appeared in due season before the judgment was taken. This distinguishes the two cases.
But conceding that the defendant’s right to defend under our statute has been construed to be absolute, and not discretionary with the judge, still he may waive the right to have the cause removed to the Federal Court for trial by any act which clearly shows an election on his part not to avail himself of such right. Dills v. Fiber Co., 175 N. C., 51; Patterson Lumber Co., ibid., 92.
A defendant may by his conduct estop himself from contesting the jurisdiction of the State court. Bank v. Lumber Co., 52 Fed., 897; Guano Co. v. Ins. Co., 60 Fed., 929; Schipper v. Cordage Co., 72 Fed., 803; Note, 26 Ann. Cas., 1337; 23 R. C. L., 614.
And this is but just, for “by the exercise of the right of removal, the petitioner refuses to permit the State court to deal with the case in any way, because he prefers another forum to which the law gives him the right to resort.” Wabash Western Ry. v. Brow, 164 U. S., 271, 41 L. Ed., 431.
*608Animadverting on bow tbe defendant may waive bis right of removal, Judge Bose, in bis valuable work on Federal Procedure, sec. 374, p. 325, says:
“On tbe other band, as it is a mere right of tbe parties, and under tbe present statute, a right confined to tbe defendant, be can exercise it or not as be sees fit. He may so act as to show that be has elected not to do so. This election be will conclusively evidence by not making bis motion within tbe time limited by law. It is easy to conceive of many other ways in which even before tbe expiration of tbe time in which be must exercise this right be may so act as to estop himself from so doing, upon tbe theory that what be has done shows that be has agreed not to avail himself of it.”
Tbe defendant made bis initial appearance in tbe instant suit 27 April, 1925, by giving notice to tbe plaintiff and bis counsel that on 11 May following be would lodge a motion before tbe judge bolding tbe Superior Court of New Hanover County, in tbe courthouse at Wilmington, N. C., to set aside and vacate tbe default judgment taken against him at tbe February Term, 1925, of said court, “and for an order allowing said defendant to file answer to tbe complaint,” upon tbe ground that tbe judgment was irregularly entered and taken without due process of service, “tbe facts with reference thereto being as set forth in tbe affidavit of tbe said S. R. Smith hereunto attached.” Accompanying said affidavit, and as a part thereof, was tbe defendant’s answer which be proposed to file so that be might “make defense in said action according to tbe course and practice of tbe court,” as prayed for in bis affidavit.
This motion was not beard in New Hanover County at all, but by consent (Gaster v. Thomas, 188 N. C., 346), tbe matter was continued to be beard in chambers at Burgaw, Pender County, 28 September, 1925, when and where tbe judge entered an order vacating tbe judgment and allowing tbe defendant, S. R. Smith, at bis request, twenty days within which to file answer to tbe complaint; and it was further agreed at that time by counsel for plaintiff and defendant “that tbe court might enter its judgment on said motion without finding tbe facts thereon.”
In Case v. Olney, 106 Fed., 433, tbe defendant filed a demurrer in tbe State court and made an agreement as to when it should be beard; later be sought to remove tbe cause to tbe Federal Court: Held, that tbe right to remove bad been waived. Quoting from Frink v. Blackinton, 80 Fed., 307, tbe Court said: “Moreover, in view of tbe delays in litigation arising unavoidably from tbe right of removal, tbe construction of doubtful provisions should be in favor of requiring tbe greatest diligence from parties exercising that right.”
*609In the judgment of the clerk, refusing the motion to remove, and which was affirmed by the judge of the Superior Court, it is found as a fact that the defendant “asked for and obtained an extension of time to file an answer to the complaint,” which was allowed and “the defendant consented to the judgment and entered no exception or objection to the form thereof.”
This was a voluntary submission by the defendant to the jurisdiction of the State court and a waiver of the right to remove. Ford v. Lumber Co., 155 N. C., 352; Bryson v. R. R., 141 N. C., 594; Howard v. R. R., 122 N. C., 944.
Speaking to a similar situation in Pruitt v. Power Co., 165 N. C., 416, Clark, C. J., said: “The entering into the stipulation for an extension of time to file the answer, which was duly approved by the judge, was a general appearance in the State court and waived the right to remove. It was an acceptance of the jurisdiction of the State court.”
I think the judgment of the Superior Court is correct and that it should be affirmed.