On Rehearing.
Both appellants, Aviation Credit Corporation and United States Fidelity & Guaranty Company, have filed motions for rehearing, which have received careful consideration. It is urged by the former that the effect of striking the plea of privilege was to “deprive the trial court of the right to proceed further, and leave the case not only in the same situation as it would have been had the plea never been filed, but in the same situation as it would have been had the notice never been served on this appellant.” If that contention is correct, it follows that appellant is in the same situation as that involved in American Surety Co. v. Stebbins, Lawson & Spraggins Co., 107 Tex. 413, 180 S. W. 101, L. R. A. 1916F, 583, and the court was without authority to render -a personal judgment against either the principal or the surety. The leading case relied upon in support of the contention that the effect of striking the plea of privilege was to recall the personal notice theretofore served is Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914. We do not think the case is authority for the contention. That case was an action instituted against a citizen of Virginia under an act of Congress passed during the Civil War “to suppress insurrection, to punish treason and .’rebellion, to seize and confiscate the property of rebels, and for other purposes.” Monition and notice were issued and published, in -response to which the owner made appearance to contest the proceeding, but his answer was stricken and his right to appear denied. It is small wonder that the Supreme Court used strong language in disposing of the question. But that is not the situation in the instant case. Appellant was not refused the right to file an answer. It had the unquestioned right to do so, and could have filed an answer on the merits subject to its plea of privilege, thus preventing the rendition of a default judgment against it. It did not choose to do so, but rather chose to file a plea of privilege, which, in our opinion, was insufficient to present any question for decision. The court properly sustained demurrers to this plea and proceeded to hear the case on its merits in the absence of any answer filed. That portion of the decree 'striking the plea from the record added nothing thereto.
This question was presented in the cases of Western Mutual Fire Ins. Co. v. Childress (Tex. Civ. App.) 238 S. W. 348, and Luse v. Curry (Tex. Civ. App.) 261 S. W. 195, 196. In the latter case it was disposed of in this language: “As to the proposition that the court erred in hearing the case on its merits, after striking out the plea of privilege, there was no other course to pursue, for the reason that the case then stood as if no plea had been filed; and, no answer to the merits having been filed, judgment by default was proper.”
On the question of whether a meritorious defense was alleged, the surety company makes the suggestion that, in view of the fact that appellee’s counsel misled appellants’ counsel, this court should “not require much of a showing of meritorious defense for a refusal to sanction such-unconscionable acts.” We -held that the allegations made no showing. Evidently that was the holding of the trial court, for he refused to hear any evidence in support of the motion. Our duty is to support that ruling, unless error is shown. We would gladly give appellant the benefit of all reasonable intendments, but a meritorious defense must be alleged. If none was alleged, there is no ground for liberality.
It is suggested that there is no positive testimony as to the amount of usurious interest paid. It is true that the only witness who testified stated that he thought, according to his papers, he paid appellants $1,467.-80. The trial court was not satisfied with this testimony, and before ruling on the case propounded this interrogatory: “You paid this amount of money that you stated at the rate of 1% per month in advance?” To which the witness answered “Yes.” We think that testimony sufficiently definite.
It is recognized that difficult questions are presented in this case, but we have given each one a careful consideration and reconsideration, and the opinion heretofore ren*875dered reflects our conclusions on the law governing the several questions.
Both motions for rehearing will therefore be overruled.