At our last Tyler term, 1884, the appeal in this case was dismissed on motion of the assistant attorney general because the record did not show that a valid final judgment had been entered against appellant. After said dismissal in this court, and at the following term of the district court of Jefferson county, the district attorney, on the 15th day of November, 1884, filed his motion in said district court to have a proper final judgment of conviction entered nune pro tune. On the 28th of November, defendant filed objections to the said motion, one of which was that no notice of said motion had ever been served upon him. These objections were overruled by the court, and the motion of the district attorney was sustained, and a final judgment nunc fro tune was rendered and entered. Defendant saved his bill of exceptions to the action of the court, and assigns the same for error.
It is provided by statute that “ where from any cause whatever there is a failure to enter judgment and pronounce sentence upon conviction during the term, the judgment may be entered and sentence pronounced at any succeeding term of the court, unless a new trial has been granted or the judgment arrested, or an appeal has been taken.” (Code Crim. Proc., art. 797.) Under this provision it has been held that if an appeal has been taken, but no final judgment was entered, and the appeal is dismissed, it is the proper practice to cause the final judgment to be entered at a subsequent term in the court a quo, nunc pro tune, and that from this judgment the defendant may again prosecute appeal. (Smith v. The State, 1 Texas Ct. App., 408; Mapes v. The State, 13 Texas Ct. App., 85; Vestal v. The State, 3 Texas Ct. App., 648.) In civil practice, “ notice of motions in a suit pending is given by the filing of the motion and entry thereof in the motion docket during the term.” (Kev. Stats., art. 1454.) But “ where a motion does not relate to a pending suit, and where the time of service is not elsewhere prescribed, the ad*486verse party shall be entitled to three days’ notice of the motion.” (Rev. Stats., art. 1456.)
It may be insisted that until a judgment final and valid is rendered the suit is still pending, and therefore no notice of any motion relative thereto is necessary. This, however, is not the rule where there has been an attempt on the part of the court to make a final disposition of the case by entering judgment. In such case, where action at a subsequent term is sought, the defendant is not presumed to be longer in court and cognizant of its proceedings, and it is but proper he should have notice of the same. (Coffee v. Black, 50 Texas, 117.) Whenever a defendant’s interests are being adjudicated, he has the right to be notified and heard by the court making such adjudication. “This is a fundamental principle applicable to all proceedings of a court of justice at every stage of their progress.” And an appearance for the purpose of objecting to the proceeding is neither a waiver of the right to notice nor binding upon the party as a full appearance. (De Witt v. Monroe, 20 Texas, 289.) “ Our statutes require that notice be given to the parties interested in a judgment or decree before any correction of mistakes or misrecitals in the judgment can be made by amendment.” (Rev. Stats., arts. 1354, 1355; Williams v. Nolan, 58 Texas, 708; Russell v. Miller, 40 Texas, 494; Blalock v. The State, 3 Texas Ct. App., 376; Collins v. The State, 16 Texas Ct. App., 274.)
We will not go into a discussion of the other questions. Because the final judgment nunc fro tune was rendered against appellant without notice, the judgment is reversed and the cause remanded that a proper judgment nunc fro tune may be rendered.
Reversed and remanded.
[Opinion delivered January 31, 1885.]