delivered the opinion of the court.
This is an appeal from a decree of the Circuit Court of Cook county dismissing a bill for want of equity. A. W. Curran filed a bill against Emma C. Good, which sought to enjoin the collection of a judgment rеcovered against him, and to have a new trial awarded.
It appears from the еvidence that on December 4, 1912, the defendant brought an action against the complainant to recover damages for personal injuries; that complainant was defaulted and judgment entered against him for $1,700. Complainant moved the court to set aside thе judgment, but the motion was denied, and thereupon this bill was filed. After issue joined, the cause was hеard before the chancellor, and a decree entered dismissing the bill for want of еquity.
The bill sought to set aside the judgment on the ground that no service of process was had оn the complainant in the action for personal injuries. Where a bill is filed to enjoin thе collection of a judgment and award a new trial on the ground of want of service оf process and the lack of service does not appear on the faсe of the record, the evidence to sustain such want of service must be clear and satisfactory. Davis v. Dresback,
The chancellor saw and heard the witnesses in open court and found that the comрlainant had not established by clear and satisfactory evidence that he had not been served with process in the action at law, and also that he had not shown a meritorious defense, or that there would be a different result if a new trial were awarded, and thаt he had not shown by a preponderance of the evidence that the judgment in the аction at law was excessive. It would serve no useful purpose to set forth an anаlysis of the evidence, but after a careful consideration of all the evidencе in the record, we cannot say that "the finding of the chancellor is manifestly against the wеight of the evidence.
Counsel for complainant place great reliance on the case of Kochman v. O’Neill, supra. The testimony in that case was substantially the same as in the case at bar, and the court sustained a decree enjoining the collection of a judgment. The principal point of difference between the two сases, however, is that the chancellor, who saw and heard the witnesses, found that the сomplainant there proved by clear and satisfactory evidence that no service was had in the action at law, while in the case at bar the chancellor found to the contrary.
Complainant further contends that it was error to permit the defendant to introduce evidence tending to disprove that the complainant had a meritorious defense to the action at law, the argument being that the complainant in such сase is only required to show a prima facie defense on the merits; that the proсeeding is similar to a motion to set aside a default judgment where counter-affidavits arе not permissible on the question as to whether there is a meritorious defense. We think that the rule is not as contended for. In Colson v. Leitch and Reed v. New York Nat. Exch. Bank, supra, it was сlearly held that even where there was no service of process in an actiоn at law, the judgment would not be set aside in a suit in equity, unless it was shown that there would be a different result in 'the action at law upon another trial. This of course could not be determined withоut hearing evidence on behalf -of both parties. This contention of complainant, however, is not properly before us, because no such point was urged or intimatеd in the trial court, and it is elementary that it cannot be raised for the first time in a court of review.
Finding no substantial error in the decree of the Circuit Court of Cook county, it will be affirmed.
Affirmed.