On Second Motion for Rehearing.
Defendant has filed a 2nd motion for rehearing, and since our adjudication of his 1st motion for rehearing, has filed in the trial court two affidavits relevant to his argument that he was wrongfully deprived of a Statement of Facts, one by the official reporter of that court, who was also in office when this cause was tried, and one by the special judge who tried this cause. We granted defendant leave to file in this court a supplemental transcript made up of copies of these two affidavits, but erred in so doing. There is no authority for our consideration of such, an affidavit as that of the reporter. Viewing the special judge’s affidavit as a certificate made by an officer vested with authority (within the limitations of the Rules) to make up Bills of Exceptions and a Statement of Facts, and pretermitting discussion of form or of failure to comply with Rules 372 and 377, it must still be said that this paper was filed in the trial court long after time had expired for filing a writ of error record in this court, either as of right or for cause, within an extension of time. Rules 381 and 386 impliedly prohibit such action. Defendant’s ground of appeal was his inability to obtain a statement of facts to which he was entitled, and it was his duty to file in this court within the times prescribed in Rule 386 a record supporting his Points of Error. Doubtless he had some right of amendment under Rules 428 and 429 (and see Rule 370), but these affidavits constitute additions made to the trial court’s record after the times prescribed in Rule 386 had expired, and the right of amendment does not go so far. There is no question of waiver; plaintiff has objected to our consideration of the supplemental transcript and has moved to strike this transcript because of the late filing thereof and of the documents therein contained. Nor has any good cause been assigned if good cause be thought material. See State ex rel. Crawford v. Wagner, Tex.Civ.App., 203 S.W.2d 795, at page 799 (Hn.10); State ex rel. Cavanaugh v. Nelson, Tex.Civ.App., 170 S.W. 814, at page 816. If these affidavits can be considered despite the late filing thereof, so ought to be considered a transcript or a statement of facts filed late under similar circumstances. Rule 386 must be complied with, at least at the requirement of an interested party; and there being no question, of any right to amend, defendant’s procedure here would, in effect, disregard it. See Rule 437: Cocke v. Birr, 142 Tex. 432, 179 S.*326W.2d 958; Alexander Motor Co. v. Pruitt, Tex.Civ.App., 198 S.W.2d 947; and also see: Bell v. Stephenson, Tex.Civ.App., 187 S.W.2d 152; Bolling v. Rodriguez, Tex.Civ.App., 212 S.W.2d 838; Pelton v. Cooke, Tex.Civ.App., 209 S.W.2d 398.
Although the supplemental transcript cannot be considered and is not properly a part of the record, we see nothing to be gained by taking it out of our files and returning it to defendant’s counsel, and we shall allow it to remain on file for the convenience of the parties in arguing an appeal. Defendant’s attention is directed to the fact that, doubtless through inadvertence, the special judge’s affidavit discussed in the motion for leave to file differs in material respects from the special judge’s affidavit on file in the trial court; and appropriate corrections should be made in any further discussion of this matter.
Attached to plaintiff’s reply to the 2nd motion for rehearing is the affidavit of plaintiff’s counsel; but this affidavit cannot be considered.
Defendant’s 2nd motion for rehearing is overruled.