fiASFOBD V. FOLSOU. 203 �could not be expected to make a new and different case- The action of the court in refusing to set aside the submis- sion, upon his application, is significant of the course which. would bave been taken bad be undertaken to introduee a new issue. The decree, too, purports upon its face to settle notbing except the rights of the parties as against the defend- ants, and there is no bint of any question raised between the plaintiffs. �Section 3689 of the lowa Code indicates very clearly that amendments are a matter of discretion with the court. "Tbe court may, on motion of either party, at any time, in fur- tberance of justice, and on sueb terms as may be proper, per- mit sucb party to amend any pleadings or proceedings by striking ont the name of a party, or by correcting a mistake in the name of a party, or a mistake in any otber respect, or by asserting otber allegations material to the case, or wben the amendment does not change substantially the claim or defence by conforming the pleadings or proceedings to the facts proved." Of course, it is impossible for us to say bow the court would bave exercised its discretion, but it would seem the proper course, as the case was instituted solely for the purpose of determining the plaintiff's rights as against Jeremiab Folsom, and no question had been raised as between the plaintiffs, to remit the parties to tbis court, where a suit had already been launched to determine the validity of the oonveyance from Frank to Eliza. The defence of res adjudi- eata is not maintained; neither does the case present any difficulty upon the merits. It is said that the arrangement under wbich these conveyances were executed was made in the latter part of 1874, between Frank and Simeon Folsom, acting for the defendant Eliza. Tbis arrangement was not in writing, nor can the witnesses point to any definite con- versation at which the bargain was perfected. No exact time is specified, and we are left to infer that the arrangement was a mere loose understanding between the parties. The testimony is abondant to the effect that at this time Simeon and Frank Folsom, who had been in partnership since 1860, Xrere indebted in about the sum of $35,000, increased during ����
