
    Selden N. Merriam, plaintiff in error, v. John Dunbar, defendant in error.
    .Removal of Cause: costs. Although the timely filing of a proper petition and bond under the provisions of the act of Congress, approved March 8, 1875, may render it the imperative duty of the state court to make an order removing the cause to the circuit court of the United States for the proper district, yet when it does not appear from the record that the attention of the district court has ever been called to such petition and bond, nor any motion made to set aside a judgment rendered after the filing of such petition and bond, this court will deny costs in a proceeding in error to reverse such judgment.
    Error to the district court for Otoe county.' Tried below before Pound, J.
    
      Edwin E. Warren, for plaintiff in error.
    
      John O. Watson, for defendant in error.
   Cobb, J.

There can he no doubt of the right of the plaintiff in error to have the case removed to the circuit court of the United States for the proper district, upon the petition and bond set out in the record. And had he called the attention of the district court to the said petition and bond, we are bound to presume that the court would have entered an order of removal, and would not have rendered a judgment in the case. Or, had he afterwards called the attention of the district court to its erroneous judgment in the case, no doubt said court would have set it aside. And a strict adherence to the rules of practice in this court would justify the refusal of relief until the said plaintiff had first brought the matter to the attention of the district court and afforded it an opportunity to correct its own records. But as no substantial purpose would be served by a strict practice in this case, the judgment of the district court will be reversed, and the cause remanded, with direction to the district court.to enter an order of removal, as prayed by the plaintiff in error, nunc pro tunc, but without costs in this court.

Judgment accordingly.  