Bentley v. Anderson-McGriff Hardware Co. , 181 Ga. 813 ( 1936 )

Atkinson, Justice.

1. “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.” Brown v. State, 114 Ga. 60 (2) (39 S. E. 873); Griggs v. State, 130 Ga. 16 (60 S. E. 103).

(a) It is clear from the language of the judgment upon which error is assigned that the trial judge did not rule upon the constitutional question.

(5) Whether or not the constitutional question, having been raised for the first time in the response to the motion to dismiss the petition for certiorari, which the judge refused to allow, came too late to evoke consideration by the Supreme Court, need not be decided.

'2. As the bill of exceptions does not seek to review a judgment as to the constitutionality of a statute, and the case not involving any other question of which the Supreme Court would have jurisdiction, the case is transferred to the Court of Appeals, which has jurisdiction.

Transferred to Court of Appeals.

All the Justices concur. A. W. White and W. R. Bentley, for plaintiff in error. W. A. McClain, contra.