,10 _‘ r, , rmnsrutn -REPORTEB•_ j _
plaintiffs tohle abillin equity for the reformation of the written c0n—
tract. ¤,,lQntso_doing, thepspirit of the state practice was observed and en—
forced, andthe difference in mode is one of mere form, due tothe exist-
ence_of the rule of this court forbidding the admixture of legal and
equitable proceedings in one cause; if upon the proceedings in equity
it is held that the policy sued on should be reformed, then this court
can permit an amendment tothe petition to be made setting forth the
reformation of the policy, and its terms as reformed; and, this being
done, then, under section 2654, thedefendant cannot claim final judg~
ment on thademurrer, because the amendment will have obviated the
objection to the petition as originally brought., The question is not, as
is argued by defendants counsel, dependent upon the character of the
judgmentwhich a court of law is authorized toenter upon the decision
of a. demurrer, but upon the power of the court to permit an amendment
to; be made, which will preclude the entry of a final judgment on the de-
mur¤JQ¥» There can be no question that under the provisions of the Code
of Iowa theypower to allow the tiling of an amendment exists, and that
the time within which such amendment shall be tiled is within the dis~
cretion of the court, to be exercised with due regardthe facts of the pa1·—
tticular cases So far, therefore, as the present motion is based upon the
grou¤.d,of,1ack of power tomake theorder continuing the cause for the
purpose of enabling plaintiffs to procure the reformation of the policy
» sued on,  thegfacts justify it, and, when reformed, to amend the peti~
tion in the present cause by declaring on the policy as reformed, the same
must be overruled- , , . . ,
Counsel further argue that, granting the right to make the order com-
plained, of to exist, the order was improvidently and improperly made
pin this case, forthe reason that the policy contains a provision that in
case of lossnosuit or action can be maintained thereon unless brought
,within si;; months after the happening of the loss, and that the action of
the court,may_ deprivethe company of the benefit of this provision,
whichgthe courthas not the right to do., The theoryof the defendants
counsel is that the court should, upon the hearing of the demurrer, have
gendered annal judgment dismissing the action, and that then, when
the bill was Bled for the reformation of the contract, this limitation could
have been pleaded in bar of theproceeding in equity, and, if not held a
barvto that suit, it could be pleaded in bar of the action based upon the
reformed contract. Counsel, in their argument, assume that if the at-
ytentiou of the court had been. called to this provision of the policy at the
time the order complained of was made the court would have refused to
_.-make the rordr, and would have given judgment on the demurrer, so as
,to have enabled the defendant to avail itself of this limitation. Thisas-
-surnption,is,i1l founded. The existence of thejlimitation referred to was
; one of thereasons why the order was made that-is now sought to be set
aside., The action on the policy was brought before the expiration of the
six rnonthsg, being commenced in the district court of Benton county.
It was removed to thiscourt by the defendant in October, 1884, more
than _a year qfter the occurrence of the fire. Had the cause remained