¶1in rendering the judgment of the court on this motion, said:
¶2This motion is not obnoxious to rule 19 of this court. Such motions can be heard at any time. State v. William D. Merriman, next case ante.
¶3There is nothing before us of the record in this case, but the notice of intention to appeal. No return has been filed, it appearing that the time in which the return is to be filed has not expired. We know nothing of the nature of the appeal. This motion is premature, and the motion cannot be considered for this reason alone. In the case of Pickens v. Quillian (31 S. C., 602), the court held, on a motion in that case, that the return not having been filed, it was without jurisdiction. For this reason alone the motion is refused.
¶4Thereupon the following order prepared by counsel ivas passed:
¶5On hearing the motion of J. M. Johnson to dismiss this appeal, and argument of the solicitor for and appellant’s counsel against said motion, it is ordered, that said motion be dismissed on the ground that no return has been filed in this court, and the time for perfecting the appeal has not expired, and this court as a consequence has no jurisdiction at this stage of the case to hear this motion.