Plaintiff sued the defendant, a minor under age 13, for negligence. The defendant's motion for summary judgment was granted based upon his immunity from liability in tort by reason of his age. The appellant contends on appeal that Code 105-1806 denies equal protection of the law because when a minor under age 13 is sued as a defendant for alleged negligence the law provides such minor immunity from liability for negligence, whereas when a minor under age 13 sues as a plaintiff for alleged negligence the law provides that such minor is not immune from the defense of contributory negligence. However, there is nothing in the record before this court to show that this constitutional question was raised or ruled upon by the trial court. Therefore this case is not within the jurisdiction of this court and the appeal is transferred to the Court of Appeals.
Sumner & Mitchell, Douglas W. Mitchell, III, for appellants.