State v. Biesemeyer
118 S.W. 1197
Mo. Ct. App.
1909
Check Treatment
ELLISON, J.

On information by the prosecuting attorney of Osage county the defendant was convicted in the circuit court for practicing dentistry without procuring a license as required by Laws 1905, p. 217. In due time he filed a motion for new trial and in arrest ;of judgment. These motions were overruled and thereupon he, in due form, applied for an appeal to this court, which was granted and he was released on a proper bond. Several days afterwards, but during the same term, it seems the trial court discovered that defendant had not been arraigned and thereupon, without any notice to him, set aside the order granting him his appeal and set the case down to be tried on June 18th, a day of the same term. On that day the prosecuting attorney entered a inolle prosequi and then filed a new information for the same offense. Defendant was again put upon trial and again convicted. He made due plea of his former convic*671tion and appeal. These were overruled. Again he appealed to this court, the latter being the appeal before us.

The law seems well settled that while a record maybe corrected by the trial court after an appeal has been granted, yet the appeal itself is pending in the appellate court from the time of its being granted, and the jurisdiction of the case is with the, appellate court. [Ladd v. Couzins, 35 Mo. 1. c. 515; DeKalb Co. v. Hixon, 44 Mo. 1. c. 342; Ross v. Railway, 141 Mo. 397; Sublette v. Railway, 66 Mo. App. 1. c. 334.

The St. Louis Court of Appeals, in Werckmann v. Taylor, 112 Mo. App. 365, decided that while the appeal vested jurisdiction of the case in the appellate court, yet that was only true so long as the order granting the appeal remained in force, and that the trial court had authority during the term to set aside the order and thus annul the appeal. But it seems to us that question is not for decision in this case from the fact that the order here made was made without notice to defendant. When he was granted his appeal and had given his bond and was discharged, he had a right to assume that no further steps would be taken in the case without notice to him. It was not a matter in which he had.no part or interest or right to be heard. An appeal may be from a trial in which the defendant may have the right to demand a judgment that he is not guilty, or that he is not liable to the action, if a civil suit. The mere mention will suggest the many things in a record which are of such vital interest to a party as that they will entitle him to an absolute discharge. If then the court or appellee may, without notice to him, set aside his appeal for some technical cause (in this case that he had not pleaded to the information) and then by amendment, or, as here, by a new proceeding, again bring him to trial, they can grant a new trial or. non-suit in a manner altogether new. If such practice can be indulged, an appellee who finds a record upon which the appellant is properly entitled to *672' a final acquittance at the direction of the appellate court, can have the order of appeal set aside and a new trial granted, or a new action instituted, so that he may by different procedure, or by additional evidence, make another attempt to develop a case. It seems to us the practice would be revolution of the established order of procedure.

When one has taken his appeal from the judgment against him, whether for murder or for debt, he cannot be deprived of the rights to which the record shows he is entitled. It may be that the order of appeal can be set aside and the appellant be then given whatever judgment the record shows he should have had on that record, whether that be merely a new trial for error, or a final discharge.

But all this shows the absolute necessity of notice to the appellant so that he may protect himself in these vital particulars. “It is a cardinal principal that whenever a party’s rights are to be affected' by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.” [George v. Middough, 62 Mo. 549; Rich Hill Mining Co. v. Neptune, 19 Mo. App. 438; Wickham v. Page, 49 Mo. 526, 529; Laughlin v. Fairbanks, 8 Mo. 367.] It is true that during the progress of a case after a party has been duly arrested or summoned he is presumed to be in court and only such notice of different steps is necessary as the rules of court may prescribe. But, as is said in the case last cited, “No such presumption can arise after the case is disposed of ... In every case, therefore, of a special motion, unless there has been an express or implied waiver of notice, the want of such notice would, of itself, be sufficient to vitiate the proceedings.”

We think the defendant’s objections to the second trial should have been sustained, and the judgment will be reversed and he will be discharged.

All concur.