The act under which this cause was attempted to be removed (Rev. St. § 639, subd. 3) requires the petition and affidavit for the removal to be filed “in the state court.” And “in order to such removal the petitioner must at the time of filing his petition therefor, offer in said state court, good and sufficient surety,” etc. “It shall thereupon
Under the statutes of Iowa, courts act only in term, and judges have only a few enumerated powers which can be exercised in vacation. “Upon any final adjournment of the court all business not otherwise disposed of, stands continued generally” until the next term. Code, § 172. Without the consent of parties, the courts cannot decide cases in vacation (Id. § 183), or the judges do anything except to make provisional orders in specified cases. Judges in this state cannot, in vacation, exercise the power of courts in term. The act of congress (Rev. St. § 639) requires the petition and bond to be filed in the state court, and requires the state court to accept the surety, and to proceed no further in the cause. This implies action, to some extent, on the part of the state court, viz. to accept the surety if it be sufficient, and negatively the duty not to take any subsequent steps in the cause — action which in Iowa can only be taken by the court when acting as a court, that is, in term time. Whether the mere consent of the plaintiff to refer the cause, without more, waives the right of removal under Rev. St. § 639, subd. 3, as insisted by the defendant’s counsel, we need not determine. Hanover Nat. Bank v. Smith [Case No. 6,035]. I have doubt on this point and give no opinion upon it.
The case is not legally removed to this court, and is therefore dismissed. Case dismissed.