
    Campbell & Jones v. State Central Bank.
    (No. 2661, Op. Book No. 4.)
    Error from McLennan County.
    June 2, 1883.
   Opinion by

Willson, J.

§ 378. Usury; judgment for illegal interest; judgTnent by default. A judgment by default was rendered upon a promissory note, which, upon its face, stipulated for the payment of interest at the rate of two per cent, per month. This, illegal rate of interest is allowed and included in the judgment, and'the judgment furthermore recites that it shall bear interest at this rate from the date of its rendition. A case in point is Moseley v. Smith, wherein it is said: “The defendant, by his default, submits the contract, and his rights under it, to the court, and the contract, being plainly void on its face, in part, must be so declared and judged by the court.” [21 Tex. 441.]

This case is distinguished from Harrison v. State Central Bank, supra, in this, that in Harrison’s case he appeared and pleaded other defenses, thereby waiving the defense of usury. Here the defendant has not either expressly or impliedly waived the defense of usury, not having pleaded at all, the judgment being by default.

Reversed and remanded.  