Maxwell, J.
On the third day of May, 1877, the defendant in error filed a petition in the district court of Cuming county against the plaintiff in error, and one George W. Cress-man, alleging that they claimed some interest in lots 3 and 4 in block 4, in the town of West Point, and praying that the title might be quieted in the plaintiff. Summons was duly issued thereon, returnable on the fourteenth of May, requiring the defendant therein to answer on the fourth day of June, 1877. The sheriff appointed one Samuel Miller to serve the writ.
Miller made his return under oath, stating that he summoned the within named defendants, by delivering a certified copy of the summons, with the endorsements thereon, to the said George W. Oressman, on the ninth [151]*151day of May, 1877, and to the said A. F. Blair, on the eighth day of May, 1877. There is no venue stated in the affidavit. The defendants made a special appearance, and moved to quash the service of the summons, assigning various reasons therefor. The motion was overruled, to which the defendants in the court below excepted.
On the fourth day of June, 1877, a petition and bond for the removal of the cause to the circuit court of the United States were duly filed.
On the next day a default was taken against Blair and Oressman, which on the same day they moved to set aside, and asked leave to answer. The proposed answer set forth that Oressman, on the sixth day of November, 1876, filed a mechanic’s lien on said lots for work and labor and for machinery furnished to the plaintiff (defendant in error) under a contract, and that there was due thereon the sum of $5,686.77; that after filing said lien, said Oressman assigned the same to Blair; that prior to the commencement of this action he had commenced an action in the circuit court of the United States to foreclose said lien, and that said cause is now pending in said court.
On the ninth day of June, 1877, the motion to set aside the default and permit Blair and Oressman to answer was taken up. The motion was sustained as to Oressman and overruled as to Blair.
A decree was thereupon rendered against Blair, the court finding: ‘¿That the defendant A. F. Blair having failed to answer or demur to the petition of the plaintiff herein filed, the court further finds that said defendant * * * nor any one for them have any estate in or are entitled to the possession of said real estate, or any part thereof.” The defendants in the court below were perpetually enjoined from claiming an • interest in the property.
[152]*152On the same day in which the decree was rendered the motion to remove the cause to the circuit court of the United States was taken up and overruled, upon the ground of the insufficiency of the petition and bond.
Section 81 of the code of civil procedure provides : “ In all cases where service may be made by publication, and in all other cases where the defendants are non-residents, and the cause of action arose in this state, suit may be brought in the county where the cause of action arose, and personal service of the summons may be made out of the state by the sheriff, or some person appointed by him for that purpose.”
In all cases where service of a summons is made on a person without the state, proof of such service must be made by affidavit.
It is clearly shown by the record that the defendants in the court below were non-residents of this state. It also appears that the case is one that falls within the fourth sub-division of section 77 of the code, in which service may be made by publication, or by personal service of the summons out of the state. But before service can be made by publication, or by personal service of the summons out of the state, an affidavit must be filed setting forth that service of summons cannot be made within- the state on the defendant or defendants to be served, and that the case is one of those mentioned in section 77. No affidavit was filed in this case, therefore there was no valid service of the summons. Fiske v. Anderson, 33 Barb., 75. Litchfield v. Burwell, 5 How., Pr., 341. 1 Code Rep., N. S., 41. Morrell v. Kimball, 4 Abbott Pr., 352.
The objection, that the affidavit of service of the summons has no venue, is well taken. An affidavit should show upon its face that it was taken within the officer’s jurisdiction. The motion to quash, therefore, should have been sustained.
[153]*153After the motion to quash the service had been overruled, the plaintiffs in error entered a general appearance, and filed the petition and bond to remove the cause to the circuit court of the United States. On the next day a default was taken against them, while the application to remove the cause was pending and undisposed of. It is remarkable that no effort was made by the plaintiffs in error to have the court pass upon the petition for the removal of the cause, before attempting to have the default set aside. No particular objection to either the petition or bond filed for the removal of the cause has been pointed out, and they appear to be sufficient. But in case of the refusal of the state court to accept the petition and bond, if the cause thereafter proceeds to trial and final judgment, such judgment is not void, but voidable. And where the petition for removal, in connection with the pleadings, fails to show that the cause is removable, the judgment will not be erroneous. Gordon v. Longest, 16 Pet., 97. Insurance Co. v. Dunn, 19 Wall., 214. Kanouse v. Martin, 14 Howard, 23; Id., 198. Stevens v. Phœnix Ins. Co., 41 N. Y., 149. Holden v. Putnam Fire Ins. Co., 46 N. Y., 1. Savings Bank v. Benton, 2 Metc. (Ky.), 240. Dillon on Removal of Causes.
We are aware that there are a number of cases which hold that after a proper application to remove a cause has been refused by a state court, all subsequent proceedings therein are without jurisdiction and therefore void. Herryford v. Ins. Co., 42 Mo., 151. Akerly v. Vilas, 1 Abb. U. S., 284. 1 Bissell, 110. Fisk v. U. P. R. R., 6 Blatchf., 362. Id., 8, 243. Stevens v. Phœnix Ins. Co., 41 N. Y., 149. Dillon on Removal of Causes. But these decisions do not meet with our approval.
Section one, of article III, of the constitution of the United States provides that: “The judicial power of the United States shall be vested in one supreme court, [154]*154and such inferior courts as the congress may from time to time ordain and establish.”
Section two, of article III, provides that: “ The judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made by their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming land under grants of different states; and between a state or the citizens thereof and foreign states, citizens, or subjects.”
This prescribes the extent of the authority of the United States courts, beyond which Congress cannot authorize them to act, and jurisdiction assumed by them outside of these limits is without authority of law.
In Turner v.
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Maxwell, J.
On the third day of May, 1877, the defendant in error filed a petition in the district court of Cuming county against the plaintiff in error, and one George W. Cress-man, alleging that they claimed some interest in lots 3 and 4 in block 4, in the town of West Point, and praying that the title might be quieted in the plaintiff. Summons was duly issued thereon, returnable on the fourteenth of May, requiring the defendant therein to answer on the fourth day of June, 1877. The sheriff appointed one Samuel Miller to serve the writ.
Miller made his return under oath, stating that he summoned the within named defendants, by delivering a certified copy of the summons, with the endorsements thereon, to the said George W. Oressman, on the ninth [151]*151day of May, 1877, and to the said A. F. Blair, on the eighth day of May, 1877. There is no venue stated in the affidavit. The defendants made a special appearance, and moved to quash the service of the summons, assigning various reasons therefor. The motion was overruled, to which the defendants in the court below excepted.
On the fourth day of June, 1877, a petition and bond for the removal of the cause to the circuit court of the United States were duly filed.
On the next day a default was taken against Blair and Oressman, which on the same day they moved to set aside, and asked leave to answer. The proposed answer set forth that Oressman, on the sixth day of November, 1876, filed a mechanic’s lien on said lots for work and labor and for machinery furnished to the plaintiff (defendant in error) under a contract, and that there was due thereon the sum of $5,686.77; that after filing said lien, said Oressman assigned the same to Blair; that prior to the commencement of this action he had commenced an action in the circuit court of the United States to foreclose said lien, and that said cause is now pending in said court.
On the ninth day of June, 1877, the motion to set aside the default and permit Blair and Oressman to answer was taken up. The motion was sustained as to Oressman and overruled as to Blair.
A decree was thereupon rendered against Blair, the court finding: ‘¿That the defendant A. F. Blair having failed to answer or demur to the petition of the plaintiff herein filed, the court further finds that said defendant * * * nor any one for them have any estate in or are entitled to the possession of said real estate, or any part thereof.” The defendants in the court below were perpetually enjoined from claiming an • interest in the property.
[152]*152On the same day in which the decree was rendered the motion to remove the cause to the circuit court of the United States was taken up and overruled, upon the ground of the insufficiency of the petition and bond.
Section 81 of the code of civil procedure provides : “ In all cases where service may be made by publication, and in all other cases where the defendants are non-residents, and the cause of action arose in this state, suit may be brought in the county where the cause of action arose, and personal service of the summons may be made out of the state by the sheriff, or some person appointed by him for that purpose.”
In all cases where service of a summons is made on a person without the state, proof of such service must be made by affidavit.
It is clearly shown by the record that the defendants in the court below were non-residents of this state. It also appears that the case is one that falls within the fourth sub-division of section 77 of the code, in which service may be made by publication, or by personal service of the summons out of the state. But before service can be made by publication, or by personal service of the summons out of the state, an affidavit must be filed setting forth that service of summons cannot be made within- the state on the defendant or defendants to be served, and that the case is one of those mentioned in section 77. No affidavit was filed in this case, therefore there was no valid service of the summons. Fiske v. Anderson, 33 Barb., 75. Litchfield v. Burwell, 5 How., Pr., 341. 1 Code Rep., N. S., 41. Morrell v. Kimball, 4 Abbott Pr., 352.
The objection, that the affidavit of service of the summons has no venue, is well taken. An affidavit should show upon its face that it was taken within the officer’s jurisdiction. The motion to quash, therefore, should have been sustained.
[153]*153After the motion to quash the service had been overruled, the plaintiffs in error entered a general appearance, and filed the petition and bond to remove the cause to the circuit court of the United States. On the next day a default was taken against them, while the application to remove the cause was pending and undisposed of. It is remarkable that no effort was made by the plaintiffs in error to have the court pass upon the petition for the removal of the cause, before attempting to have the default set aside. No particular objection to either the petition or bond filed for the removal of the cause has been pointed out, and they appear to be sufficient. But in case of the refusal of the state court to accept the petition and bond, if the cause thereafter proceeds to trial and final judgment, such judgment is not void, but voidable. And where the petition for removal, in connection with the pleadings, fails to show that the cause is removable, the judgment will not be erroneous. Gordon v. Longest, 16 Pet., 97. Insurance Co. v. Dunn, 19 Wall., 214. Kanouse v. Martin, 14 Howard, 23; Id., 198. Stevens v. Phœnix Ins. Co., 41 N. Y., 149. Holden v. Putnam Fire Ins. Co., 46 N. Y., 1. Savings Bank v. Benton, 2 Metc. (Ky.), 240. Dillon on Removal of Causes.
We are aware that there are a number of cases which hold that after a proper application to remove a cause has been refused by a state court, all subsequent proceedings therein are without jurisdiction and therefore void. Herryford v. Ins. Co., 42 Mo., 151. Akerly v. Vilas, 1 Abb. U. S., 284. 1 Bissell, 110. Fisk v. U. P. R. R., 6 Blatchf., 362. Id., 8, 243. Stevens v. Phœnix Ins. Co., 41 N. Y., 149. Dillon on Removal of Causes. But these decisions do not meet with our approval.
Section one, of article III, of the constitution of the United States provides that: “The judicial power of the United States shall be vested in one supreme court, [154]*154and such inferior courts as the congress may from time to time ordain and establish.”
Section two, of article III, provides that: “ The judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made by their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming land under grants of different states; and between a state or the citizens thereof and foreign states, citizens, or subjects.”
This prescribes the extent of the authority of the United States courts, beyond which Congress cannot authorize them to act, and jurisdiction assumed by them outside of these limits is without authority of law.
In Turner v. The Bank of North America, 4 Dallas, 8, the supreme court of the United States say: “The circuit court is a court of limited jurisdiction, and has cognizance of onty a few cases specially circumstanced, and a fair presumption is, that a cause is without its jurisdiction until the contrary appear.”
In cases arising under the constitution, laws, and treaties of the United States, the subject matter gives the jurisdiction without regard to the citizenship of the parties. But when questions of that character are not involved, it is the citizenship of the parties alone that confers the jurisdiction. And it must appear on the face of the record that the citizenship of the parties supports the jurisdiction. Course v. Stead, 4 Dallas, 22. Montalet v. Murray, 4 Cranch, 46. Hodgson v. Bower bank, 5 Id., 303. Sullivan v. The Fulton Steamboat Co., 6 Wheat., 450. Dodge v. Parkins, 4 Mason, 435.
[155]*155Where a petition is filed, to remove a cause on the ground that it is between citizens of different states, and the facts stated in the petition are denied by answer, may the court not hear testimony to determine whether the allegations of the petition are true? The question to be determined is one of fact, and in no manner depends on the construction to be given any law of the United States.
The court having obtained jurisdiction of the subject matter and the parties, no valid objection can be urged against its examining the grounds upon which it is sought to oust it of its jurisdiction. And it is the proper tribunal to make the examination.
The act of congress of March 3,1875, assumes to take from the state courts this power.
In Hadley v. Dunlap, 10 Ohio State, 9, the supreme court of Ohio say: “As the state courts do not derive their powers and jurisdiction from the federal government, the authority of congress to impose duties upon such courts, or otherwise to act directly upon them, may well be questioned.”
These views of the supreme court of Ohio meet our approval. Suppose the circuit court of the United States should assume jurisdiction in a case between citizens of the same state, where jurisdiction could only be acquired by reason of the parties being citizens of different states, its .judgment thereon would be absolutely void. 1 Paine C. C., 486, 498. Jackson v. Twentyman, 2 Peters, 136.
Where, however, the application is in the proper form and the facts are such as 'to bring the case within the provisions of the law for the removal of causes, it is the duty of the district court to proceed no further in the cause. And should it do so, this court will correct the error, and order the cause certified to the circuit court.
The act of March 3, 1875, requires the application [156]*156for removal to be made before or at the term at which the cause could be first tried, and before the trial thereof.”
In the case at bar the application to remove the cause appears to have been filed at the proper time, but it does not appear to have been brought to the attention of the court until after the motion to set aside the default and to permit the plaintiffs in error to answer had been overruled and a decree had been entered in favor of the defendant in error. The plaintiffs in error make no explanation of the cause of their failure to call up the application for removal, and they appear to have voluntarily submitted to the jurisdiction of the court.'
• The court should have set the default aside and permitted the plaintiffs in error to answer. A party in default may be permitted to answer upon such terms as to the payment of costs as may be prescribed by the court, at any time before the judgment is rendered. And where it is apparent that the party in default has a meritorious defense to the action, the court must permit the answer to be filed. The court cannot deprive a suitor of a substantial right under the plea of the exercise of discretion. O’Dea v. Washington Co., 3 Neb., 122. Mills v. Miller, Id., 95.
The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.