All the decisions agree that where the mails have been relied upon, and the party has failed thereby to secure a statement of facts, on account of some accident to or detention by the mails, it is a want of diligence, under article 1382. The opinion recognizes this, but relies upon the recent decision of the court of civil appeals in Carothers v. Lange. That case has no application here. The court in that case permitted the filing of a transcript where the opposite party sought an affirmance on certificate, and held in regard to that matter that reasonable diligence was shown, and permitted the record to be filed.
The statute under which this decision was made reads as follows: “In any appeal or writ of error as provided for in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk of the courts of civil appeals within ninety days from the performance of the appeal or service of the writ of error: provided, that for good cause the court may permit the transcript to be thereafter filed upon such terms as it may prescribe.” If article 1382 read as does this article, there would be some cogency in the contention of the majority.
But under this latter article the court may permit transcripts to be filed for good cause and upon such terms as the court may prescribe. Under article 1382, appellant must show the failure to file the statement of facts arose from no fault on his part and from circumstances beyond his control. The difference between the statutes is plain, and the rule prescribed by one has no analogy to the other. I therefore dissent from the position of the majority that the rule laid down for the filing of transcripts is applicable to the rule prescribed for the filing of statements of facts. Carothers v. Lange, supra, has no application to article 1382.
