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sue as assignees of the rights of Eyler and one G. Abraham, to whom as
mortgagee the loss was to be paid by the terms of the policy. From the
averments in the petition contained it appears that the real party interested
` in the property insured was the said G. Abraham, it being averred that he
was the owner ofthe elevator and the business carried on therein, the same,
however, being carried on in the name of Eyler; and that in fact the con-
tract of insurance was made with Abraham. The defendant demurred to
the petition, and the court held that, the action being at law, the plaintiff _
was bound bythelegal effectand meaning of the written contract of in-
surance, to-wit, the policy sued on; that upon its face it showed that the
contract was to insure,Eyler.’s interest in the property; and that upon
the face ofthe policy plaintiffs could not recover, unless it was shown
that Eyler had an actual interest in the property covered by the policy;
and that plaintiffs could not by parol evidence show a contract contra-
dicting the written policy on which the suit was based; that if the pol-
icy as signed did not represent the real contract made by the parties, it
could be reformed in equity, but that, unless so reformed, an action at
law thereon could not be maintained to recover the loss caused to the
property of Abraham. Thereupon, at the request of plaintiffs, the court
granted leave to file a bill in equity for the reformation of the written
r contract, and continued this action, awaiting the result of the proceed-
ings in equity. A A bill for the purpose named was thereupon filed upon
the equitysideof the court, and is still pending. The defendant now
moves for an order expunging and rescinding the leave granted for filing
the bill, and also for final judgment on the demurrer, upon the ground
that the statute of Iowa, (section 2654, Code,) provides that upon the de-
cisionof a demurrer, if the unsuccessful party fails to amend or plead
over, the same consequences shall ensue as though a verdict had passed
against the plaintiff; and that the court, as a court of law, cannot do oth-
erwise, than to render a strictly legal judgment upon the demurrer.
A Taking the ground assumed by defendantfs counsel, that the statutory
rule is binding upon this court, what is the result? »When the time comes
for entering final judgment on the demurrer, the rule cited will be appli#
cable, but the section of the Code relied on was never intended to bear
the narrow construction now claimed to be applicable, nor are the powers
of a court at law so limited as counsel seem to assume. The section re- '
lied on by counsel provides that if the party beaten on the demurrer fails
to amend or plead over. then certain consequences ensue; but the section
does not provide when and how such amendment must be made. That
‘ is a matter that is within the power of the court, and the time within
which an amendment may be made must depend upon the circumstances
of each case`. Section 2638, Code Iowa. The practical effect of the
ruling upon the demurrer was that, to enable the plaintiffs to rely upon
the contract of insurance, which it was averred had in fact been made, it
was necessary to reform the written contract or policy, and then to de-
clare onjit iasamended. If the case had been pending in the state court,
the plaintiffs, upon the sustaining of the demurrer, could have filed an
amended petition in the cause, setting up the facts relied on as justifying