Roland v. Watson , 185 Ga. 866 ( 1938 )

Hutcheson, Justice.

1. The rule that a partj to a suit will not be allowed to disprove an admission made in his pleadings is not applicable where the party by amendment withdraws the admission theretofore made. Alabama Midland Railway Co. v. Guilford, 114 Ga. 627 (40 S. E. 794).

2. Whether or not the pleadings in the instant case contained the admission as to a statement on which evidence was afterwards adduced, seeking to disprove it, must be determined in the light of all the allegations embraced in the original and amended pleadings. Accordingly, the defendant in error was not estopped to offer proof of the fact in question. Compare Antognoli v. Miller, 116 Ga. 621, 623 (42 S. E. 1006); Gabbett v. Atlanta, 137 Ga. 180, 183 (73 S. E. 372).

3. The only issue raised by the present record being, whether Mamie Allen (Roland) was the lawful wife of Tom Allen at the time of his death, and two successive verdicts having- been rendered that she was not, the refusal of the judge to sustain a motion for another new trial, based on the general grounds, will not be reversed, since upon a consideration of the evidence it can not be said that it was insufficient to support the jury’s finding.

Judgment affirmed.

All the Justices concur, except Russell, O. J., and Atkinson, P. J., who dissent.