Opinion of the Court.

Mr. JUSTICE CRAIG delivered the opinion of the Court: This is an appeal from a judgment rendered in the Superior Court of Cook county, at the October term, 1874.

It does not appear from the record that appellant attempted to interpose any defense to the merits of the action.

It is, however, claimed that the cause was tried out of its regular order on the docket, under what is known as the "five-day rule" of the Superior Court, and upon this ground alone we are asked to reverse the judgment.

The bill of exceptions contained in the record states, that on the 19th day of October, 1874, a notice was served on the appellant that the cause would be brought on for trial on the 26th day of October.

No allusion is, however, made in the notice to the five-day rule. nor to the fact that a speedy trial will be asked or had. The record shows that a trial was had on the 26th day of October, but it fails entirely to show that the trial was had under any rule of court, or that the cause was called or tried out of its regular order on the docket.

In the absence of proof, we must presume the cause was called and tried in its regular order upon the docket.

The fact that an affidavit was filed by the plaintiff, that he believed the defense interposed by the defendant was for delay, and that a notice was served that the cause would be brought on for trial on a certain day, falls far short of establishing the position of appellant, that the cause was called and tried out of its order on the docket, or that a trial was had under a certain rule of court.

If the case was called and tried by the court out of its regular order, and appellant desired to save the question, it was his duty to have incorporated that fact in the bill of exceptions.

So far as the record shows, the trial was regular, and we perceive no error in the rendition of judgment; it will therefore be affirmed. Judgment affirmed.

Opinion of the Court.

ELEANOR FIGHT

v.

THOMAS HOLT.

1. HOMESTEAD EXEMPTION—does not extend to widow as against the heirs and their grantees, under acts of 1851 and 1857. The acts of 1851 and 1857, in relation to homestead, only created an exemption from forced sales or alienations by the husband, and did not extend to the widow the right of homestead in premises of which her husband died seized, as against the heirs or the grantees, or purchasers from the heirs.

2. PARTITION—sale may be made subject to widow's dower. On a petition for partition of real estate, where it appears that the premises are not susceptible of partition, there is no error in ordering the estate to be sold subject to the widow's dower, which may afterwards be assigned in accordance with the provisions of the statute.

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

Messrs. MAYO & WIDMER, for the appellant.

Messrs. BUSHNELL, BULL & GILMAN, for the appellee.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

It was held. in Eggleston v. Eggleston, 72 Ill. 24, the acts of 1851 and 1857, in relation to homestead, only created an exemption from forced sales, or alienations by the husband, and did not extend to the widow the right of homestead in premises of which her husband died seized, as against the heirs. The doctrine of that case has since been affirmed in Sontag v. Schmisseur, 76 Ill. 541.

The only difference between these cases and the one at bar. is, that here, the petition for partition is filed by the grantee of the heirs. This can make no difference. A grantee or purchaser from the heir occupies the exact position of the heir, and is entitled to assert the same rights in the premises.

Opinion of the Court.

As the premises appear not to have been susceptible of division, there was no error in ordering the estate to be sold subject to the widow's dower, which may hereafter be assigned in accordance with the provisions of the statute.

The decree will be affirmed.

Decree affirmed.

80 85 121 421

80 85

AUGUST FISHER

v.

THE BOARD OF TRADE OF CHICAGO et al.

85

94a 1305

1. CHANCERY 80 can not restore a member unlawfully expelled from an association. If a member of a board of trade is improperly expelled by proceedings contrary to the constitution and by-laws, or rules of the board, a court of chancery can not restore him.

2. INJUNCTION-a preventive remedy only. An injunction is a preventive remedy merely, and can not be so framed as to command a party to undo what he has done.

APPEAL from the Superior Court of Cook county; the Hon. S. M. MOORE, Judge, presiding.

Mr. ALLAN C. STORY, for the appellant.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Messrs. DENT & BLACK, for the appellees

Mr. JUSTICE BREESE delivered the opinion of the Court

Appellant, being a member of the Board of Trade of the city of Chicago, was complained against by a firm, whose members, one or more, belonged to the same association. for dishonesty in a bran transaction, demanding the action of the board against him, in pursuance of the constitution and rules of the association. Such proceedings were had before the proper authorities of the board, as to result, on their report

80 100a 2276

85

85

80

105a 1381

Opinion of the Court.

to the board, in the expulsion of appellant by a vote of a majority of the association voting on the question.

Some weeks thereafter, appellant exhibited his bill on the equity side of the Superior Court of Cook county, against the board, complaining of their action in the premises, and that he had been unjustly expelled, and praying an injunction to restrain the board. its secretary and board of directors, from interfering with him in any manner in the full enjoyment of his rights. privileges and franchises, and in his right in common with other members of the board of entering the rooms used by the board, and from remaining in attendance as a member on the sessions of the board, and to transact business therein unmolested, in the same manner as other members of the board.

An answer was put in to the bill and replication thereto. An affidavit of one Lesley was filed by defendants in support of a motion to dissolve the injunction, and depositions taken on both sides, when, upon the hearing, the injunction was dissolved.

The cause was then considered by the court, and, at the solicitation of complainant, it was proposed a decree should be rendered dismissing the bill. It had been suggested by the court, and reiterated by the defendants' counsel, before the final decree passed, that, on application of complainant to the board of trade, a new vote would be taken on the question of expulsion. To enable the complainant to make up his mind on this proposition, the cause was continued to the next term, at which term, complainant having elected not to apply for a new vote, a final decree was rendered dismissing the bill, and on a suggestion, in writing, of damages, they were assessed, under the proofs heard on that question, at five hundred dollars.

To reverse this decree this appeal is prosecuted.

We do not consider it necessary to discuss the various propositions made by appellant, satisfied, as we are, had a demurrer been interposed to the bill, it must have been sustained

Opinion of the Court.

for want of equity in the bill; that, in its entire scope, there is nothing out of which an equity can spring. Suppose appellant had no notice of this proceeding, and had been unjustly expelled, can a court of equity reinstate him by injunction? We think not.

This court, in Wangelin et al. v. Goe, 50 Ill. 459, said an injunction was a preventive remedy merely, and can not be so framed as to command a party to undo what he has done. The very terms of the writ indicate its purpose-restraint.

Stripped of its redundancies, the prayer of the bill is. in effect, to restore appellant to his position as a member of the board of trade, nothing less. It must be apparent a court of chancery can not do this. The action of the board is final and complete, and if it has erred in that action, either on the merits or has acted in a case without having jurisdiction, chancery can not afford a remedy.

We did not design saying anything upon the merits, but we can not refrain from expressing the opinion there is sufficient evidence in the record to show that appellant received notice of the meeting to be held on the ninth of July, as early as the seventh of that month, and had he informed the board, or notified them of his domestic affliction of the ninth, it is not at all probable there would have been final action on that day, although such action would have been regular.

There is but little doubt, had appellant made the proper representations to the board, of occurrences in his family on the ninth, a new vote would have been accorded him.

If appellant has been improperly expelled by proceedings contrary to the constitution and by-laws or rules of the board. a court of chancery can not restore him. We perceive no . error in assessing damages. The proof sustains the amount found as damages.

There being no error in the record, the decree must be affirmed.

Decree affirmed.