¶1concurs.
¶2I concur in the opinion of Judge Cobb so far as the points stated in the syllabus are involved. I am unable, however, to agree with him that the petition for removal on the ground of bias or prejudice is to be filed in the federal court. We must remember that the state and federal courts are of concurrent jurisdiction in cases where the defendant is a non-resident of the state and the amount involved, exclusive of interest and costs, exceeds the sum of $2,000. In such case the defendant may remove the case into the federal court. Ordinarily his petition must be filed before the time to answer. In case of alleged bias or prejudice, however, he may file the petition at any time before trial. And this in my view is the exception in the third section of the act — that is, that in all cases except those where bias or prejudice are shown the petition must be filed before the answer day, while in cases of alleged bias or prejudice it may be filed at any time before the trial. If the petition shows a prima fade case for removal, the state court should, and, so far as I am advised, invariably has ordered the cause removed.
¶3*179If the plaintiff disputes the charge of bias or prejudice he may then appear in the federal court and contest the charge. In this respect the act of 1887 differs from that of 1867. Under the former act, upon the proper affidavit being filed in the state court, although false in fact, the case was ordered removed. Under the present statute, however, it requires more than a prima facie case to justify the retention of the case by the federal court. There must in fact be bias or prejudice shown so that it would prevent a fair trial.
¶4The mere fact of a petition being filed in the state court and the cause ordered removed, will not prevent the plaintiff from appearing in the federal court and contesting the truth of the charge. The language of the statute is somewhat vague, but this is the evident purpose. The object of the statute was to restrict the right of removal, not to extend it, and this fact must be kept in view. In other words, the act is not remedial in the sense of extending the jurisdiction of the federal courts, but was intended 'to curtail such jurisdiction. It does not create a new mode of removal, but in many respects limits the old.
¶5Section 61 of the Code of Civil Procedure provides: “That in all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or where the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some adjoining county wherein such impartial trial can be had; but if the objection be against all the counties of the district, then to the nearest county in the adjoining district.” In order to show cause for removal it must be alleged in the petition, and, if denied, proved, that a fair and impartial trial cannot be had in the county where the suit is pending or other counties in the district; or, if the objection applies to *180all of tlie counties of the district, then to the nearest county in' an adjoining district to which the objection does not apply.
¶6It is of the utmost importance that there should be no clashing of jurisdiction between the state and federal courts. From the necessity of the case the supreme court of the United States is the ultimate arbiter in all cases of doubt, and in its decision the state courts cheerfully acquiesce. It would be a sad spectacle, however, to witness a race between the slate and federal courts for the commencement or retention of business in either of said courts. This, no doubt, has been felt by both courts and every effort made to avoid a conflict; and on the part of the state court of this state at least many cases have been surrendered, or rather permitted to be removed, while the papers on their face did not show the right of removal. This, in my view, should not be permitted, as the court should not surrender its jurisdiction except upon a showing that another court is entitled to exercise it. In many cases an improper removal operates as a great wrong upon the party against whom it is made, by subjecting him to great and unnecessary costs.
¶7This is not a question .of courtesy between courts, but. must be determined by the law as it exists. The prejudice act of 1867 arose out of matters connected with the war; it has never had any solid foundation in this state.
¶8There are twenty-one judges of the district courts of this state. Many of these judges had held important offices of trust and profit for many year’s before being called to the bench. They are capable lawyers whose integrity is unquestioned. In an equity case how can an affiant swear that these twenty-one judges are biased or prejudiced against him? They are men of whom lie has no personal knowledge in all probability, and they probably have no knowledge of him whatever.
¶9It is very plain that an oath that they are all biased or *181prejudiced against him, borders very closely upon perjury; and even where the oath is predicated upon the prejudice or bias of the people of a particular county, no one can truthfully assert that the people in the more than ninety counties of this state are prejudiced against the affiant.
¶10There are many reasons why the district court should not surrender its jurisdiction until a proper showing is made in that court. Suppose an action is brought for less than $2,000 and the case is removed into the federal court, and judgment or a decree of foreclosure rendered for a sum less than that fixed by statute authorizing the removal of the cause, how can the validity of such judgment be .upheld? Not by the statute, certainly, for that only authorizes a removal where the amount claimed exceeds $2,000, exclusive, etc. The effect would seem to be that the decree of foreclosure, or judgment and all the proceedings thereunder, would be null and void.
¶11The supreme court of the United States has held that the circuit court was a court of limited jurisdiction and had cognizance only of a few cases specially circumstanced, and that the fair presumption was that the cause was without its jurisdiction till the contrary appeared. (Turner v. Bank of North America, 4 Dallas, 8; Turner v. Enrille, Id., 7; Bingham v. Cabot, 3 Id., 381.) Being a court of limited jurisdiction as to parties and amounts, like any other court of that kind, it must act within its powers. I do not care to make a comparison with other courts of limited jurisdiction where judgments in excess of their powers, as to amounts, have been held to be void; but it is well known that such is the law. It is necessary, therefore, to set forth in the record the facts and circumstances which give jurisdiction. The importance of taking the necessary steps to oust the state court of jurisdiction, therefore, plainly appear, and until such stops are taken by filing a proper petition and other papers in the state court, it should proceed with the case.
¶12In Boyden v. Burke, 55 U. S., 576, it was held by the *182supreme court of the United States that a lawful demand must be made in a respectful manner. Surely the same rule will be applied where it is sought to oust a court having lawful jurisdiction of an action.
¶13More than one hundred years ago the original act for the removal of cause was passed, one of the requisites of which was that a petition showing the necessary facts to entitle the petitioner to remove the cause, together with a bond, should be filed in the state court. This law is still in full force and applies to all cases.
¶14In Trafton v. Nougues, 4 Central Law Journal, 230, in a case before the United States circuit court of California, Judge Sawyer says:
¶15“I think it is of the highest importance to the rights of honest litigants, and to the due and speedy administration of justice, that a petition for transfer should state the exact facts and distinctly point out what the question is and how and where it will arise which gives jurisdiction to the court so that the court can determine for itself from the facts whether the suit does really and substantially involve a dispute or controversy properly within its jurisdiction. Whenever, therefore, the record fails to distinctly show such facts in a case transferred to this court it will be returned to the state court.”
¶16I fully concur in all that is said above, but unless a prima facie case is made for removal, it is the duty of the state court to proceed with the trial, and it should not surrender its jurisdiction unless a proper application is made to it showing the necessary facts for that purpose, while, if a prima facie case is made for removal, the cause should be ordered removed.
¶17If upon such petition being filed the state courts refused to transfer the case, there might be a just cause of complaint, but no such case has occurred in this state, so far as this court is advised, and the respect due to the state no less than the federal court requires that the proceedings be conducted in an orderly manner and in conformity to law.