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issued November 2, 1889, but during the interval, from October 1 to the qualification of the judges, the continuity of the courts was preserved by the sixth section of the schedule to the constitution, (Laws N. Dakota, 1891, p. 55,) which reads thus:

"§ 6. Whenever any two of the judges of the Supreme Court of the State, elected under the provisions of this constitution shall have qualified in their offices, the causes then pending in the Supreme Court of the Territory on appeal or writ of error from the District Courts of any county or subdivision within the limits of this State, and the papers, records and proceedings of said court shall pass into the jurisdiction and possession of the Supreme Court of the State, except as otherwise provided in the Enabling Act of Congress, and until so superseded the Supreme Court of the Territory and the judges thereof shall continue, with like powers and jurisdiction as if this constitution had not been adopted. Whenever the judge of the District Court of any district elected under the provisions of this constitution shall have qualified in his office, the several causes then pending in the District Court of the Territory within any county in such district, and the records, papers and proceedings of said District Court, and the seal and other property pertaining thereto, shall pass into the jurisdiction and possession of the District Court of the State for such county, except as provided in the Enabling Act of Congress, and until the District Courts of this Territory shall be superseded in the manner aforesaid, the said District Courts and the judges thereof shall continue with the same jurisdiction and power to be exercised in the same judicial districts respectively as heretofore constituted under the laws of the Territory."

The twenty-third section of the act of Congress of February 22, 1889, entitled, "An act to provide for the division of Dakota into two States and to enable the people of North Dakota, South Dakota, Montana and Washington, to form constitutions and state governments and to be admitted into the Union on an equal footing with the original States and to make donations of public lands to such States," is as follows: "SEC. 23. That in respect to all cases, proceedings and

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matters now pending in the Supreme or District Courts of either of the Territories mentioned in this act at the time of the admission into the Union of either of the States mentioned in this act and arising within the limits of any such State, whereof the Circuit or District Courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases, the said Circuit and District Courts, respectively, shall be the successors of said Supreme and District Courts of said Territory; and in respect to all other cases, proceedings and matters pending in the Supreme or District Courts of any of the Territories mentioned in this act at the time of the admission of such Territory into the Union, arising within the limits of said proposed State, the courts established by such State shall, respectively, be the successors of said Supreme and District Territorial courts; and all the files, records, indictments and proceedings relating to any such cases, shall be transferred to such Circuit, District and state courts, respectively, and the same shall be proceeded with therein in due course of law; but no writ, action, indictment, cause or proceeding now pending, or that prior to the admission of any of the States mentioned in this act, shall be pending in any territorial court in any of the Territories mentioned in this act, shall abate by the admission of any such State into the Union, but the same shall be transferred and proceeded with in the proper United States Circuit, District or state court, as the case may be; Provided, however, That in all civil actions, causes and proceedings, in which the United States is not a party, transfers shall not be made to the Circuit and District Courts of the United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper state courts." (25 Stat. c. 180, 676, 683.)

This section embodies the view thus expressed by Mr. Justice Clifford, speaking for the court, in Baker v. Morton, 12 Wall. 150, 153: "Whenever a Territory is admitted into the Union as a State, the cases pending in the territorial courts

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of a Federal character or jurisdiction are transferred to the proper Federal court, but all such as are not cognizable in the Federal courts are transferred to the tribunals of the new State. Pending cases, where the Federal and state courts have concurrent jurisdiction, may be transferred either to the state or Federal courts by either party possessing that option under the existing laws."

By its terms, cases exclusively of Federal jurisdiction are consigned to the courts of the United States, and cases exclusively of state jurisdiction to the courts of the State, while the proviso applies to cases of concurrent jurisdiction, which may proceed in the state courts or be transferred on request to the United States courts. But in order to such transfer, the action, cause or proceeding must be "pending.”

Assuming that, because defendant was a corporation created by the United States, this was a case "whereof the Circuit or District Courts by this act established might have had jurisdiction under the laws of the United States had such courts existed at the time of the commencement" of the case, and that if it stood on motion for new trial it was so far pending as to be susceptible of removal, what was the fact when the petition was filed in the state court December 7, 1889 ?

By section 5343 of the Compiled Laws of Dakota of 1887, referred to by counsel for defendant, it was provided that "an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied." But the meaning of the act of Congress is not to be determined by provisions of that character in territorial laws. If this case had gone to judgment and no motion for a new trial had been made, or, if made, had been abandoned or overruled prior to the admission of the State, then there was no cause, proceeding or matter pending which would justify the Circuit Court in taking jurisdiction.

Under section 5216 of the Dakota Code, already referred to. appeals "must be taken within two years after the judgment shall be perfected, by filing the judgment roll.”

The conclusion that cases in the Dakota local courts are

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pending, without action therein, for two years after rendition of judgment, so as to be capable of being transferred on request into the Circuit Court, is quite inadmissible.

The record of cases of exclusive Federal jurisdiction which have gone to judgment should, indeed, be transmitted to the Circuit Court and the judgments there enforced, but where final judgment has been rendered in cases of concurrent jurisdiction, no reason can be assigned for, nor do the terms of the act of Congress contemplate, such a transfer.

By section 5090 of the Compiled Statutes of Dakota: "The party intending to move for a new trial must, within twenty days after the verdict of the jury, if the action were tried by jury, or after notice of the decision of the court, if the action were tried without a jury, serve upon the adverse party a notice of his intention, designating the statutory grounds upon which the motion will be made and whether the same will be made upon affidavits, or the minutes of the court, or a bill of exceptions, or a statement of the case," etc.

Under section 5092: "The application for a new trial shall be heard at the earliest practical period after service of notice of intention, if the motion is to be heard upon the minutes of the court, and in other cases, after the affidavits are served or the bill of exceptions or statement, as the case may be, is filed, and may be brought to a hearing in open court or before the judge at chambers, in any county in the district in which the action was tried, by either party, upon notice of eight days to the adverse party, specifying the time and place of hearing,"

etc.

Section 5083 provides: "When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within thirty days after the entry of judgment, if the actions were tried with a jury, or after receiving notice of the entry of judgment, if the action was tried without a jury, or such further time as the court in which the action is pending, or a judge thereof, may allow, prepare a draft of a bill and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken, upon which the party relies. Within twenty days after such service the

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adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed. bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party, or be delivered to the clerk of the court for the judge.

Section 5093 reads: "The court or judge may, upon good cause shown, in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done."

Section 4939 provides: "The court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this code, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding," etc.

In St. Croix Lumber Co. v. Pennington, 2 Dakota, 467, the Supreme Court of the Territory decided that, under the code as it then existed, if a bill of exceptions was not presented for settlement within the time fixed by statute, or such other time as might be allowed by the court or judge, no power existed for its allowance. But the Supreme Court of North Dakota, in Northern Pacific Railroad Co. v. Johnson, 1 North Dakota, 354, held that, under sections 4939 and 5093 of the Compiled Laws, the District Court could, after the time granted for settling a bill had expired, without making an order extending the time, and against objection, settle and allow such bill; the order of settling operating to extend the time until the date of actual settlement; and that "until the time for appeal has expired, all of the various steps leading up to and including a motion for a new trial may, with respect