OPINION OP THE COURT
This suit was brought for the foreclosure of a mortgage on certain real estate situated in Harding county, N. M. On March 10, 1922, judgment was rendered foreclosing the mortgage, and in the same adjudication a personal judgment was given against the appellant for the full amount of the indebtedness claimed by the plaintiff (appellee).
The complaint recites substantially that on the 30th day of July, 1927, the defendant (appellant), being then indebted to the plaintiff in the sum of $16,500, executed and delivered to the plaintiff its certain promissory note, whereby it promised and agreed to pay said indebtedness with interest and attorney’s fees, if the note was not paid when due; that various other defendants executed a written guaranty for the payment of the indebtedness sued on, after the security should first be exhausted; that the prin*346cipal defendant likewise -executed a mortgage on certain land and assigned a certain state contract to secure the payment of such indebtedness; that the whole amount of the principal with interest thereon as provided by the terms of the note sued on from the 1st of October, 1920, until paid, remained due and unpaid; that demand had been made for payment and payment refused. The appellant admitted that the copy of the note set forth in the complaint was true and correct. The first paragraph of the prayer demands judgments against the principal defendant (appellant), the Alamocitos Land & Live Stock Company, for the full amount of the $16,500 principal, with interest and attorneys’ fees. The second paragraph of the prayer asks for the foreclosure of the mortgage lien. To this complaint defendants demurred, and the demurrer was overruled. The appellant likewise filed a motion to strike certain portions of the complaint, which motion was overruled. The defendants then answered the complaint. The answer, so far as appellant is concerned, admitted that the principal and interest of said note was due and unpaid, but alleged that the note sued on was made and delivered to the plaintiff upon the usurious agreement between the defendant and plaintiff that the defendant should pay, and the plaintiff should receive for the loan of the money, a greater sum than 12 per cent, per annum.
The appealing defendant prayed that the relief asked for by the plaintiff be denied, and that said defendant be not required to pay to the plaintiff a greater sum than the principal of the note with interest thereon at the rate of 10 per cent per annum until paid, and asked that attorneys’ fees be denied to plaintiff. A reply was filed by the plaintiff denying that the transaction was usurious and denying all of defendant’s affirmative allegations. Plaintiff gave notice that he would call the case up for trial on the 2d day of March, 1922, at, Raton, Colfax county, N. M. At such time and place, the parties appeared and the cause was continued by consent of all parties and by *347the court set for trial at Clayton, Union county, N. M., on the 10th day of March, 1922, at which time and place the plaintiff appeared and announced ready for trial, and the defendant, the Alamocitos Land & Live Stock Company, appeared by its president, R. J. Freeland, who was also one of the guarantor defendants, and said cause was continued until 2 o’clock in the afternoon of March 10, 1922, at which time plaintiff presented his evidence, and the defendants, failing- to offer any evidence and not asking any further continuance of said cause to a subsequent date, the court having considered the evidence offered and having heard the counsel for plaintiff, made findings and conclusions and rendered the judgment and decree, which recites that the same was done in open court on the 10th day of March, 1922, the date of said trial.
Thereafter an execution was issued and levied upon certain personal property of the appellant, the Alamoeitos Land & Live Stock Company. Appellant filed its motion to quash the execution and. motion to set aside the sale under the execution. These motions were overruled by the court. Appellant then filed a motion asking the court to strike from the decree certain portions thereof and for an order nunc pro tune permitting appellant an exception to that part of the decree granting a personal judgment against appellant. This motion was also overruled. On August 25, 1922, appellant filed its motion for allowance of an appeal from final judgment and appeal was granted by the court, the order being filed on August 30, 1922. Time for perfecting the appeal was by various orders extended to September 26, 1922. On December 4, 1922, appellant filed its motion to modify the judgment or, in the alternative, to vacate the same. On the same day, appellee filed his motion to strike the motion to vacate the judgment, setting out that all the matters set out in the motion to vacate had theretofore been passed upon by the court adversely to the defendant; that the time for filing *348such a motion had elapsed, and that the defendant had thereofore taken an appeal from the final judgment. Thereafter the court sustained the motion of appellant to vacate and modify the final judgment. From this order of the court sustaining the motion to strike the motion to modify and vacate the judgment, the appeal was prayed and allowed, and upon such appeal the case is now in this court.
There are nine assignments of error, but ihe appellant says in its brief:
“The court will note that but one question in reality is raised by this appeal, to wit, whether or not the district court, in an ordinary suit brought for the purpose of foreclosing a real estate mortgage, has jurisdiction to render a personal judgment against the mortgagor for the full amount of the indebtedness claimed to be secured by the mortgage, and to authorize the immediate issuance of execution upon such judgment in the same decree as that in which the mortgage was foreclosed.”
.The only basis of such a contention is that defendant was entitled to a jury trial before a personal judgment could be given against it.
Section 4193 of Code of 1915 provides:
“An issue of fact in an action for the recovery of money only, or specific real or personal property, where the right of trial by jury existed at common law, must be tried by a jury, unless a jury trial be waived.”
Section 4189 of the Code provides:
“An issue of fact arises upon a material allegation in the complaint controverted by the answer.”
The plaintiff having pleaded a copy of the note sued on, and the defendant having admitted the copy pleaded as correct and admitted the execution thereof, further pleaded — •
‘ ‘that the note mentioned in the complaint was made and delivered to the plaintiff upon the usurious agreement between the defendant and the plaintiff, that the defendant should pay the plaintiff, and that the plaintiff should reserve and secure to himself for the loan of money a greater sum than at the rate of 12 per cent., per annum, to wit, at the rate of 12 per cent, per annum after the maturity fof said note and an additional 12 per cent, per annum on the Interest so charged.”
*349That statement of the rate of interest to be charged is exactly what is stated in the note sued upon. This allegation not being controverted but, on the other hand, being relied upon by the defendant for the purpose of showing a usurious contract, did not present an issue of fact. An issue of law arose as to whether upon the admitted facts the contract was usurious.
If the court erred in finding the contract free from the taint of usury, this was an error occurring upon the trial and may not be taken advantage of by a motion to vacate the judgment, the remedy being by an appropriate motion for a new trial or rehearing on appeal. Wallis v. Mulligan, 20 N. M. 328, 148 P. 500; Coulter v. Board of County Commissioners of Bernalillo County, 22 N. M. 24, 158 P. 1086.
It will be noted that section 4193, quoted supra, at most only provides for the trial of an issue of fact by a jury in certain cases, “unless a jury trial be waived.” Section 4197, Code 1915, provides certain specific methods by which a trial by jury may be waived, one of which is “by suffering default, or by failing to appear at the trial.” Section 4198 provides that upon the calling of the docket at a term of court the parties shall either demand or waive a jury in the trial of a cause in which they are interested. It will be noted that both appellant and appellee were present in court at Raton, Colfax county, on March 2, 1922, and thereupon consented that the case should be set for trial at Clayton, Union county, N. M., on March 10, 1922. No demand was made by appellant for a jury. The case was one which originated and which was then pending on the civil docket of Harding county, one of the counties of the Eighth judicial district. When the appellant on March 2d consented to a trial of the ease in Clayton, Union county, N. M., on March 10th, and the record not showing any change of venue from Hapding county to Union county, it must be assumed that the appellant did not expect that in any issues triable by jury could be tried in Clayton, Union county, on the date agreed upon for the trial.
*350“Appellants contend that the court erred in denying the demand for a jury trial. As seen above, appellants were present in court and made no demand for a jury when the case was set down for trial. Appellants, therefore, waived their right to a jury (Chelan County v. Navarre, 38 Wash. 684, 80 P. 845), and it was not error for the court afterwards to deny the request when the case was on for trial.” Fruitland Irr. Co. v. Smith, 54 Wash. 185, 102 P. 1031.
In the ease at bar, the appellant did not demand a jury on the trial at Clayton on March 10th. It appears from the record that the attorneys for the appellant did not appear at the trial in Clayton, but it is recited in the judgment that the appellant appeared by its president, R. J. Freeland, and the case was thereupon submitted to the court upon the evidence offered by the plaintiff, the defendant offering no evidence, making no objections, and asking no continuance and making no demand for a jury.
It is said in the article on Juries in 35 C. J. par. 114:
“A jury trial is waived by voluntarily submitting a controversy to the determination of the court, or by permitting the court, without any objection or demand for a jury trial to proceed to hear and determine it.”
“In a civil action for judgment for money a trial by jury may be waived, not only by express stipulation of the parties or their attorneys, or statement in open court, but also by their conduct in submitting the cause to the court without objection; and an objection thereto cannot successfully be made after such submission and judgment of the court.”
“Where the jury has been waived expressly or by action of the parties, a court of equity has taken jurisdiction of the cause.”
"We have not found in the record that any request was made by the respondent to have the questions involved submitted to the jury, or of any objection made at the tinte to their consideration by the court. A court should have opportunity, in cases of law at least, to consider the very question presented in the Supreme Court. It often occurs that a point may be passed upon inadvertently when if the attention of the trial court is at the time of the ruling- called to it the decision will be otherwise. * * * After such, a submission, without the most remote suggestion even that it was desirable that a jury should be called, we think it should be held, even if a jury could be impaneled — a point not here decided — that such action was a waiver of the jury. In any event it is difficult to perceive what duty there was for a jury to perform. Appellant is not in a position to complain that there was no ■submission to a jury.”
As in that case, so in this it is difficult to perceive what duty there was for a jury to perform, and appellant is not in a position to complain that there was no submission to a jury.
Finding no error in the record, the judgment of the trial court should be affirmed, and it is so ordered.
PARKER, C. J., and WATSON, J., concur.