This suit was brought in the district court of Boulder county, under the late territorial government, and the question here presented is. whether it may be removed into this court under the act of congress of March 3, 1875. In terms, that act extends to cases then pending or thereafter to be brougb.t in any state court. This suit was not then pending in any court, nor was it afterwards brought in a si ate court, although it came into such a court by operation of law on the admission of the state, sometime after it was begun.
It was ingeniously urged in the argument at the bar that, by assenting to the jurisdiction of the state court, plaintiffs did in fact bring the suit in that court; but this will not bear examination. The bringing of a suit is understood to mean the institution or commencement of it, and so the language is in Revised Statutes, section 639, on 1he same subject. This occurred in this instance in a territorial, not a state court. Pending the suit the character of the court was changed into a state court, and there being nothing in the record to show its federal character, the court retained jurisdiction of it. 4 Dill. 251, [Ames v. Colorado Cent R. Co., Case No. 324.]2
Plaintiffs did not in any sense bring the suit in or into tb.e state court. They found it there, where the law had left it in the transition from a territorial to a state government, and they consented to go oil with it in that jurisdiction. In that way they consented [elected]3 to remain in the state court; but they did not, in any reasonable construction of the act of 1875, bring the suit in that court. This view is enforced by the circumstance th.at congress has provided a special way of transferring causes on the admission of a state by general law (Rev. St. §§ 567, 569, 704), and also in this instance by the act establishing this court, June 26, 1876. This legislation, relating to a particular class of cases and designed to carry out the general purpose of the removal acts, seems to proceed on the theory that the latter are not applicable to cases which originate in a territorial court. If congress nad consigned all federal cases to the state courts, plaintiffs would be within the reason, if not the letter, of the removal acts. But this was not done; and that which vas-done does not in any way tend to prove that the removal acts are by construction to be extended to cases like this — i: e., to-cases not within their terms. If, however, this reasoning is unsound, there is another obstacle to the removal of the cause.
Accepting the act of 1875 as applicable to the case, by the third section it is provided' that the petition for removal shall be filed-in the state court “before or at the term at which said cause could be first tried, and before the trial thereof. “The term here referred to appears to be that at which the cause may be tried or heard on the merits,, according to the practice of the court, without regard to the special circumstances of the case, as whether the parties are r»ady for trial, and the like.
Certainly we cannot, in determining a question of this kind, enter into every circumstance that may delay or facilitate the-progress of a cause, as whether there are-nice points to be decided, which require time for consideration, whether the court was otherwise occupied, and so on. s’uch an investigation would be in every way embarrassing and uncertain as to the result, and therefore it may be dismissed as impracticable. We are, then, to inquire whether, according to the practice of the court, this, suit could have been finally heard at the July term of the Boulder court, without reference-to any of those circumstances that have-been mentioned as likely to retard its progress. It appears that issue was joined on. the 24th day of July. 1876, and the court remained in session for a period of twenty-eight days thereafter.
No time was allowed, by rule of' court or otherwise, for taking testimony, and we cannot assume that any specific time was necessary. It was claimed at the bar that our-rule, 69, should govern, but that rule was not in force in th.e Boulder court. Palmer v. Cowdrey, 2 Colo. 1. So far as the record' shows, the cause could have been brought on at any time within the twenty-eight days which remained of the term after issue was-joined. If the writer may speak from his. own knowledge of the course of practice' in the territorial courts, b.e feels bound to declare that it was entirely regular to bring-a cause to hearing at the term in which issue was joined, and this was often done, especially in foreclosure suits. It is true that important suits often went over the term; but this was owing to the press of business, or other extraneous cause, and not to any rule of practice. It seems, therefore, that the-application to remove the cause was not in apt time, not being made at the term when a hearing could have beeu had. For these-*755reasons, the motion to remand will be allowed, with costs.
[NOTE. Gaffney v. Gillette. Case No. 5.168, was published as a note to the above in 4 Dill. 264.][S. C. 3 Cent. Law. J. 815.]
[From 4 Cent. Law J 199.]