
    No. 2735.
    State v. James.
    November Term, 1890. This was a petition by defendant for a rehearing of the appeal which had been dismissed by this court. See ante 44. On June 17, 1891, the following order was endorsed:
    Per Curiam. The court, after a careful examination and consideration of this petition, has reached the conclusion that no material fact or principle of law was overlooked or misunderstood in preparing the opinion heretofore filed, and therefore there is no ground for the rehearing asked for. It is ordered, that this petition be dismissed and that the stay of the remittitur heretofore granted be revoked.
    No. 2803.
    This was a motion to dismiss a further appeal in this same case, upon the ground that the order appealed from was merely the reassignment of a day for carrying out the sentence previously passed, and in conformity to the mandate of the Supreme Court in its judgment on the former appeal, and therefore was not appealable. The motion was made on November 24, 1891, and was based upon certified copies of the order or resentence of Judge Izlar, at Darlington, and notice of appeal therefrom. There was no return on file in this court, no exceptions or Case had been served, and no affidavits were presented to show what had occurred in the court below, after the case had been remitted to that court.
    
      Johnson, solicitor, for the motion. Dargan ¿f Dargan, contra.
    November 25, 1891.
   Mr. Justice McIver,

in rendering the judgment of the court on this motion, said:

This 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.

There 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.

Thereupon the following order prepared by counsel ivas passed:

Per Curiam.

On 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.  