nosnnnaunr. courier:. BLUFTS ms. 00. 11
in the state court, as already pointed out, the plaintiffs could have
amended the petition, setting up thegrounds for equitable relief, and
thus no defense could have been made based upon the limitation in the '
policy. Having removed the cause into this court, the defendant has
no ground _for complaint for that. the court has continued the action at
law, for the purpose of enabling the plaintiffs to reform the policy of in-
surance, and thus, if the facts justify, complete their evidence needed to
sustain the action at law. In principle, there is no difference between this
action on the part of the court, and in granting a continuance to enable
plaintiffs to procure the testimony of witnesses residing at a distance.
Courts of law have undoubtedly the right to grant continuance for the
purpose of enabling either party to properly prepare for trial, and this
right exists, whether the time is needed to procure the testimony of absent
witnesses, or to procure documentary evidence, or to supply, bythe aid
of a courtof equity, written evidence in cases wherein by therules of
law evidence in that form is necessary to the maintenance of the parties}
rights. By the bringing of the action on the policy, within the `six
months, and the subsequent proceedings thereon, the defendant has been
duly notified that a claim uponthe contract of insurance was asserted `
against it, and has received notice of the happening of the tire, ofthe
amount of the loss, and of all the other facts necessary to enable the defend-
ant to protect its rights in the premises. The suggestion is made that
by the lapse of time caused by awaiting the outcome of the proceedings
in equity for the reformation of th_e contract, the defendant may be de.
prived of the testimony of important witnesses. The action, however,
is pending, and it iswithin the power of defendant to takethe testimony
of all of its witnesses and thus perpetuate the same. This danger ofloss
of testimony is no other than occurs in all instances wherein a cause is `
continued from one- term to another, and it is evident that it did not
greatly impress the defendant, when it delayed the trial of the case, by .
removing the same from the state to the federal court. If the plaintiffs
do not promptly prepare the cause in equity for trial, the remedy is not
in attacking the order made allowing the bill to be filed, but by forcing
the equity cause to a hearing, or perhaps by having the court set down
the case at law for further proceedings. The plaintiffs must use due dil-
igence in preparing themselves for trial, or otherwise the cause maybe
brought to a hearing. The motion now presented is overruled. V ' ·