This is an appeal by the State from an order of the circuit court setting aside a sentence imposed upon the defendant in a magistrate’s court, upon the ground that the sentence exceeded the limitation on the jurisdiction of such courts provided by the Constitution of this State.
The transcript of record contains the title of the case, the index, the statement, the order appealed from, an exception and finally, a so-called agreement signed only by counsel for the State. It is stated in the body of the “agreement” that the respondent made no response after being personally served with the case and exceptions, hence, appellant “considers the respondent to have agreed to the case.”
Rule 1 of the rules of this Court provides that the case as agreed upon or settled shall constitute the return for appeal. Rule 4, Section 1 requires that the return filed in this Court shall contain the agreement of counsel or the order of the trial judge settling the case. The defendant not being before the Court in person or by counsel and no return as agreed upon or settled having been filed as required by said rules, and no proof of setlement under Rule 4, Section 7, having been presented, the appeal is not properly before us.
The issue sought to be raised involves the constitutional jurisdiction of a magistrate in criminal cases under former Article V, Section 21 of the South Carolina Constitution. A decision of the question, on which the members of the Court are divided, would be of no value as a precedent because the *552recently adopted Judicial Article contains no similar jurisdictional limitátiori. The effect of Article I, Section 17 of the. Constitution upon the issue has not been argued by appellant.
Appeal dismissed.
Lewis and Bussey, JJ., concur. Moss, C. J., concurs in result. Littlejohn, J., dissents.