(dissenting.) This action was pending in the district court for Ramsey county. The defendant, under section 639, Rev. St. U. S., (see Sims v. Sims, 17 Blatchf. 369,) seasonably filed a petition, bond, and affidavit of local prejudice, all in due form, (Melendy v. Currier, 22 Blatchf. 503, 22 Fed. Rep. 129,) for the purpose of removing the case to the proper circuit court of the United States. The petition, which was verified, stated that the plaintiff was at the time of the commencement of the action, and then, a citizen of Minnesota, and the defendant a citizen of Iowa. To controvert the statement that he was a citizen of Minnesota, (in which state this action was brought,) plaintiff introduced an affidavit stating that he was a citizen of the territory of Montana. The district judge received the affidavit, holding, upon the authority of Railway Co. v. Ramsey, 22 Wall. 322, that the allegations of diverse citizenship in the petition being thus denied, it was for defendant to prove them, and, in the absence of such proof, he declined to accept the security offered, and to allow the case to be removed, but proceeded with the trial. This is an appeal from the judgment upon a verdict for plaintiff.
Section 639 provides that in order to a removal the petitioner must, at the time of filing his petition, offer in the state court “good and sufficient surety” for his entering in the circuit court copies of the process, pleadings, etc., in the state court, and that “it shall thereupon be the duty of the state court to accept the surety, and to proceed no further in the cause against the petitioner.” The effect of this, and of similar provisions in other removal acts, is that if it appears from the record, of which the petition forms a part, that the case is one for removal, within the provisions of the act under which removal is sought, the petitioner is, upon proper procedure, (in this case upon filing proper petition, bond, and affidavit of prejudice,) entitled to the removal as of course, and the jurisdiction of the state court ceases eo instanti. No contest as to the truth of the facts appearing upon the record, and on which the application for removal is based, can be had in the state court. Without entering into any consideration of reasons for or against these propositions, I shall content myself with citing upon this question of precedent the following *83authorities: Dillon, Removal of Causes, (3d Ed.) §§ 75-77, 86, 87; and notes; Butterfield v. Home Ins. Co., 14 Minn. 310, (410;) Hatch v. Chic., R. I. & P. R. Co., 6 Blatchf. 105; Fisk v. Union Pac. R. Co., 8 Blatchf. 243; Stevens v. Richardson, 20 Blatchf. 53, (9 Fed. Rep. 191;) Shaft v. Phoenix M. L. Ins. Co., 67 N. Y. 544; Mix v. Andes Ins. Co., 74 N. Y. 53; Stone v. Sargent, 129 Mass. 503; Danvers Savings Bank v. Thompson, 133 Mass. 182; Clark v. Chicago, M. & St. P. Ry. Co., 11 Fed. Rep. 355; Miller v. Tobin, 18 Fed. Rep. 609; Judge v. Anderson, 19 Fed. Rep. 885; Endy v. Commercial Fire Ins. Co., 24 Fed. Rep. 657; Cobb v. Globe M. L. Ins. Co., 3 Hughes, 452; Dennis v. County of Alachua, 3 Woods, 683; Connor v. Scott, 4 Dill. 242; Ohle v. Chicago & N. W. Ry. Co., 64 Iowa, 599, (21 N. W. Rep. 101;) Ellerman v. New Orleans, etc., R. Co., 2 Woods, 120; Texas, etc., Ry. Co. v. Rust, 5 McCrary, 348, (17 Fed. Rep. 275;) Clippinger v. Mo. Valley Life Ins. Co., 1 Flippin, 456; Spear, Fed. Jud. 472, 516-518; Taylor v. Rockefeller, 18 Am. Law. Reg. (N. S.) 298; Kanouse v. Martin, 15 How. 198; Railway Co. v. Ramsey, 22 Wall. 322, —as to the remark of Chief Justice Waite in this case, with reference to sustaining petition by proof, see Dill. Bern. Causes, 94, 95, notes; 3 South. Law Bev. (N. S.) 236, and Ex parte Grimball, 61 Ala. 598;—Insurance Co. v. Pechner, 95 U. S. 183; Gold-Washing, etc., Co. v. Keyes, 96 U. S. 199; Kern v. Huidekoper, 103 U. S. 485; Railroad Co. v. Koontz, 104 U. S. 5; Steamship Co. v. Tugman, 106 U. S. 118, (1 Sup. Ct. Rep. 58;) Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; (4 Sup. Ct. Rep. 510;) Ayers v. Watson, 113 U. S. 594, (5 Sup. Ct. Rep. 641;) Street R. Co. v. Hart, 114 U. S. 654, (5 Sup. Ct. Rep. 1127.)
If I do not entirely misapprehend the tenor of these authorities, the trial court should have yielded to the application for removal, and proceeded no further in the case. The removal proceedings ousted it of jurisdiction, so that in proceeding with the trial it acted without jurisdiction, and its judgment must therefore be reversed. As before stated, the removal in this instance was sought to be made under the local-prejudice clause of section 639, Bev. St. U. S., and the condition of the security offered was in the form by that section prescribed. It is by no means clear, however, that in this state of facts the de*84fendant was not, upon the papers, also entitled to a removal under the removal act of 1875, within the ease of Norris v. Mineral Point Tunnel, 7 Fed. Rep. 272; MacNaughton v. South. Pac. C. R. Co., 19 Fed. Rep. 881; Melendy v. Currier, 22 Blatchf. 503, (22 Fed. Rep. 129;) and Deford v. Mehaffy, 13 Fed. Rep. 481; Ayers v. Watson, 113 U. S. 594, (5 Sup. Ct. Rep. 641;) Street R. Co. v. Hart, 114 U. S. 654, (5 Sup. Ct. Rep. 1127.)
I think the judgment should be reversed.
Vanderburgh, J. I concur in the foregoing dissenting opinion.