1. Under the rulings made in the eases of Hendry v. State, 147 Ga. 260 (8) (93 S. E. 413), and Starling v. State, 149 Ga. 172 (99 S. E. 619), “A question as to the constitutionality of a law can not be raised for the first time in a motion for new trial, where it was not made either by demurrer to the pleadings or by objections to evidence, or in some other appropriate way pending the trial.” And see Sheets v. Iowa Ins. Co., 226 Mo. 613 (126 S. W. 413). In the instant case the defendant in error brought suit in the court below against the plaintiff in error, for the recovery of damages for the alleged tortious homicide of her minor son, a child six years and two months old. The jury returned a verdict for the defendant in error. The plaintiff in error made a motion for new trial, which was overruled, and it excepted. In the motion for new trial §§ 4424 and 4425 of the Civil Code of 1910 were attacked for the first time, as being null and void as in contravention of the due-process clauses of the constitutions of the United States and of the State of Georgia; and also denying the plaintiff in error the equal protection of the law as provided ■ in both constitutions. Under the rulings quoted above, which were concurred in by a majority of the court, the Supreme Court has no jurisdiction of the case, because .no constitutional question is properly made. Accordingly direction is given that it be transferred to the Court of Appeals, which has jurisdiction, in order that it may hear and determine the case.
2. The case is distinguishable from Hawes v. State, 150 Ga. 101 (103 S. E. 170), in which the question of the constitutionality of a statute was raised for the first time in the motion for new trial. In that case the question was raised by assignment of error on a portion of the charge, and the defendant could not have anticipated the, charge upon which error was assigned.
Transferred to the Court of Appeals.
All the Justices concur, except Atkinson, J., and flines, J., dissenting.