majority">Hall, J.

— This was a prosecution instituted before a justice of the peace by information, charging the defendant with a misdemeanor. The defendant was convicted in the justice’s court, and he appealed to the circuit court.

In the latter court the defendant filed a motion asking that the case be dismissed for the following reasons : “ Because the defendant was never arraigned and never pleaded to the information, and no plea was ever entered before the justice in the cause by and for the defendant.” The court denied the motion. Having been arraigned in the circuit court, the defendant refused to plead' on the ground that the court had no jurisdiction because he had not been arraigned before the justice, and the court thereupon ordered a plea of not guilty to be entered for him.

The defendant then applied for a change of venue on the ground that the circuit judge was prejudiced against him, etc. Hon. E. C. Devore was thereupon elected special judge in the case, and a jury was empaneled to try the cause. The defendant objected to the introduction of any evidence in the case, for the reason that the court had no jurisdiction because of the failure of the justice to arraign him. The court sustained the objection and discharged the jury.

The prosecuting attorney then filed a motion to dismiss the appeal and remand the cause to the justice of the peace, for the reasons given by the defendant in support of his objection to the introduction of any evidence. The court sustained the motion and rendered judgment against the defendant for costs, and made another order discharging the jury.

*28The defendant filed a motion asking the court to set aside the judgment dismissing the appeal. The court sustained this motion, and made an order dismissing the case at the costs of the prosecuting witness.

On motion of the prosecuting attorney, the court set aside this last order, and then of its own motion dismissed the appeal at the costs of the defendant. From the judgment entered accordingly the defendant has appealed.

The court had jurisdiction of the appeal, notwithstanding the defendant was not arraigned before the justice of the peace. The court properly so held in the first instance and proceeded to arraign the defendant. After the plea entered in the circuit court, the case should have been proceeded with to a trial de novo, as if the defendant had been arraigned before the justice of the peace. State v. Gowing, 27 Mo. App. 389. The court, therefore, erred in dismissing the appeal.

But the discharge of the jury resulting from the action of the court in sustaining the defendant’s objection .to the court’s jurisdiction of the appeal did not operate as a.n acquittal. State v. Hays, 78 Mo. 606.

The judgment must be reversed, but the cause will be remanded to be proceeded with by the circuit court

as if no jury had been empaneled. It is so ordered.

All concur•

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