Barnes v. The Hekla Fire Ins. Co.
| Decision Date | 05 September 1888 |
| Parties | BARNES v. THE HEKLA FIRE INSURANCE COMPANY |
| Court | Iowa Supreme Court |
Decided May, 1888
Appeal from Monroe District Court.--HON. DELL STUART, Judge.
ACTION on a policy of insurance against loss or damage by fire. Judgment for plaintiff, and defendant appeals.
MODIFIED AND AFFIRMED.
T. B Perry, for appellant.
Henry L. Dashiell, for appellee.
This action, as originally commenced, was at law, and a recovery was sought on a policy of insurance. The defendant pleaded that the policy contained the following provisions "This policy shall be void unless the consent is indorsed in writing by this company in each of the following instances: * * * If the assured have, or shall hereafter obtain, any other policy or agreement for insurance, whether valid or not, on the property insured, or any part thereof." The defendant further pleaded that after the issuance of the policy in question the plaintiff had procured additional insurance on the property insured, and therefore the policy was void. The plaintiff filed an amendment to the petition, alleging that, at the time the contract of insurance was entered into and the policy issued, it was agreed between the plaintiff and defendant that the former should have the right to take out additional insurance on the property, and that the stipulation for additional insurance was "omitted from the policy by mistake, oversight, and through the fault of defendant;" and a reformation of the policy was asked. The defendant denied the allegations of the amended petition, and also pleaded that the plaintiff, having knowledge of the matters pleaded, was estopped from setting the same up, because he had elected to prosecute an action at law on the policy, and, having made an election of remedies, he was bound thereby, and also because of his negligence in failing to discover the alleged mistake, and therefore he was not entitled to equitable relief. The cause was thereupon transferred to the equity docket, and was tried as such. There was a trial at the February term, 1887, and the cause was submitted to the court upon written arguments to be filed in vacation, the plaintiff waiving the opening argument. At the time of filing a reply to defendant's argument, the plaintiff filed a further amendment to the petition, stating that, at the time the contract of insurance was entered into, the defendant was informed of the intention of plaintiff to take out additional insurance, and verbally assented and agreed thereto. The allegations of this pleading were denied by defendant, and, the cause not having been decided in vacation, the plaintiff insisted upon its immediate submission. To this the defendant objected, on the ground that the issue had been changed since the evidence had been taken, and that it had the right and desired to take evidence in the form of depositions. The court directed the case to be submitted.
I. The defendant contends that the court abused its discretion in ordering the submission of the cause at the time and in the manner it did. Under the practice in this state, as we understand, the defendant was not entitled to a continuance or postponement of the submission of the cause as a matter of right; and this is what was asked. If the defendant had additional evidence it desired to take and introduce, it should have so shown by affidavit. Failing to do this, the court properly directed the case to be submitted.
II. The defendant contends that, as the plaintiff...
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