Texeira v. Wagar , 1953 Ga. LEXIS 404 ( 1953 )

Duckworth, Chief Justice.

1. Oral admissions of fact made by counsel in the opening statement to the jury are not proper matters for consideration in passing on an oral motion to dismiss in the nature of a general demurrer. Pattillo v. Jones, 113 Ga. 330, 333 (38 S. E. 745); Hicks v. Beacham, 131 Ga. 89 (2) (62 S. E. 45); Jackson v. Davis, 203 Ga. 39 (1) (45 S. E. 2d, 278).

2. The allegations of the amended petition — to the effect that the defendant obtained the signatures of a person who was non compos mentis, and who did not receive any consideration therefor — 'were sufficient to set forth a cause of action for equitable relief, and the trial judge did not err in overruling the defendant’s oral motions to dismiss. See, in this connection, Code, § 20-906; Wynne v. Fisher, 156 Ga. 656 (2) (119 S. E. 605); Wellborn v. Johnson, 204 Ga. 389 (50 S. E. 2d, 16).

No. 18204. Submitted May 13, 1953 Decided June 9, 1953. Phillips, Johnson & Williamson, for plaintiff in error. Tye, Cooper & Bell and Walter G. Cooper, contra.

3. In the absence of a brief of evidence, it cannot be held as a matter of law that the final decree was inherently erroneous because it restricted the defendant's right to recover to proceeds from a sale of the property.

Judgment affirmed.

All the Justices concur, except Atkinson, P. J., not participating.