Opinion
25580.
ARGUED JANUARY 13, 1970.
DECIDED JANUARY 26, 1970.
Action for damages. Peach Superior Court. Before Judge Bell.
Culpepper Culpepper, S. M. Culpepper, for appellants.
Robert E. Lanyon, Martin, Snow, Grant Napier, Cubbedge Snow, Sr., for appellee.
This appeal is from the grant of summary judgment upon the ground that there was "no genuine issue of fact that the plaintiffs are not the children of the deceased in contemplation of" Code § 105-1302. The appellant contends that this court has jurisdiction because the constitutionality of that Code section is drawn into question, and also because the appeal involves the construction and interpretation of such Code section. However, no constitutional question was raised in the trial court in the pleadings or any other portion of the record. From what appears the contentions now sought to be made were asserted only in a brief submitted to the trial judge before final judgment, and hence are not a part of the record.
The rule is well established that "This court will never pass upon the constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge." Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 (1) ( 184 S.E. 297). See also, Savannah, Fla. c. R. Co. v. Hardin, 110 Ga. 433, 437 ( 35 S.E. 681); West v. Frick Co., 183 Ga. 182 ( 187 S.E. 868); Robinson v. McLennan, 224 Ga. 415 ( 162 S.E.2d 314).
Therefore, since there is no basis for this court's jurisdiction under the Constitution (Art. VI, Sec. II, Par. IV; Code Ann. § 2-3704), the case is transferred to the Court of Appeals.
Transferred to the Court of Appeals. All the Justices concur.