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 it and distinctly passed on by the trial judge." Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813 (1) (184 SE 297)
. See also, Savannah, Fla. &c. R. Co. v. Hardin, 110 Ga. 433
, 437 (35 SE 681
); West v. Frick Co., 183 Ga. 182 (187 SE 868)
; Robinson v. McLennan, 224 Ga. 415 (162 SE2d 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.
Robert E. Lanyon, Martin, Snow, Grant & Napier, Cubbedge Snow, Sr., for appellee.