Rosmmsum v.“ OGUNCIL BLUFFB INS. 00. 7. ,
ment it rendered would have been valid. If the jurisdiction of the court
upon his failure to insist upon his personal privilegebe conceded in the
one case, why should there be doubt of the jurisdiction when he volun-
tarily seeks the court. I am- aware that in the case of Harold v. Jlhnrng
Cb., 33 Fed. Red. 529, I concurred with Judge HALLETT in an opinion
different from that herein expressed, but further reflection, after hearing
the question discussed at length and frequently, has satisfied me that
. that opinion was erroneous. It is perhaps unnecessary to carry this dis-
cussion any further, and it is enough to say that we hold that the fact
that both parties are non-residents of this district does not oust this court
of jurisdiction in a case removed from the state court by a non-resident
defendant. It follows, therefore, that the motion to remand must be
overruled, and the plaintiff will have leave to apply for the appointment
of commissioners. _ I ‘ -
Rosnumum et al. v. Councrr. Br.urr·s Ins. Co. . -
, (Circuit Oowrt, .MD. Iowa. December 22.1888.) . ,~ A A   _
  COUR'I‘S¥—FEDERAL COUBTBQFOLLOWING Siwrm PBAO’l‘ICE—·INSURANC1h·r·II£P•
onmnrou or Pomcr.
In an action at law, in the federal court sitting in Iowa, on an insurance
, policy, it appeared from the petition that the person named in the policyas
the party assured was not the real party in interest. The court sustained .a
demurrer for want of interest in the assured. but granted plaintiifs’* leave to
iile a bill in equity for reformation of the contract, and continued the- action
at law pending the proceedings in equity. Held, that such order was not con-
trary to Code Iowa, § 2654, which provides that on the decision of a demur-
rer, if the unsuccessful party fails to amend, thesame consequences shall en-
sue as though verdict had passed against him. If the case had been heard in
the state court, the plaintiffs could ave amended their petition bfy setting out
the facts relied on for reformation, and in making the order the ederal court
followed the state practice as near as possible, retainingthe separate forms
ofactions. . _
2. Sami:. H . _ .
Nor was such order contrary to the provision of the policy that no action
could be maintained thereon unless brought within six months after the hap-
peninglof the loss. Had thecause remained in the state court, the petition
· could ave been amended, and the defendant cannot complain of the proceed-
· ing in equity rendered necessary by its removal of the cause to the federal
court. · “ — .·
At Law. On motion to set aside order granting leave to tile a bill in eq-
uity, and also motion for judgment on demurrer. · · »
Blake oi: Hormel and C. A; Clark, for plaintiffs. _ .
Sapp. dc Pusey and Henderson, Hurd, Dambla dc Kahsel, for defendant.
Smmls, J.- On the‘12th day of September, 1882, the defendant is-
sued a policy of insurance against fire upon an elevator and its contents',
the contract of insurance being made with one H. Eyler, and his name
appearing inthe policy as the party assured. The property having been
destroyedby fire, the present action was brought by the plainti{i`s,—who