Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5188, former Civil Code 1910, § 5775, former Code 1933, § 38-402, and former O.C.G.A. § 24-3-30\ are included in the annotations for this Code section.

History of statute.

- Former statute was a codification of the principle announced in East Tenn., V. & Ga. Ry. v. Kane, 92 Ga. 187, 18 S.E.2d 18, 22 L.R.A. 315 (1893), and a number of prior cases, in which it was asserted that "certainly a party should be relieved from proving that which his adversary distinctly alleges," and this a party may do "without formally tendering the pleading in evidence." Greene v. Gulf Oil Corp., 119 Ga. App. 87, 166 S.E.2d 626 (1969) (decided under former Code 1933, § 38-402); Carver v. Saye, 198 Ga. App. 146, 400 S.E.2d 683 (1990); 198 Ga. App. 897, 400 S.E.2d 683 (1991), cert. denied,(decided under former O.C.G.A. § 24-3-30).

An admission in the pleadings is to be taken as true, and the record should not be burdened by proof of the fact admitted. Greene v. Gulf Oil Corp., 119 Ga. App. 87, 166 S.E.2d 626 (1969) (decided under former Code 1933, § 38-402).

Pleader is bound by the allegations of the pleader's own pleadings, and what the pleader alleges in the pleader's pleadings to be true is evidence that the pleader is not even permitted to deny. State Hwy Dep't v. Lumpkin, 222 Ga. 727, 152 S.E.2d 557 (1966) (decided under former Code 1933, § 38-402).

When the plaintiff never sought to amend or withdraw averments of fact made in plaintiff's declaratory judgment petition, plaintiff was bound by those admissions and could not put up evidence over objection to contradict them. Keeley v. Cardiovascular Surgical Assocs., 236 Ga. App. 26, 510 S.E.2d 880 (1999) (decided under former O.C.G.A. § 24-3-30).

When the trial court accepted into evidence tenants' affidavits which directly contradicted earlier admissions made by the tenants in their pleadings, those earlier admissions were considered withdrawn. Therefore, the trial court erred in granting summary judgment to the landlord as a matter of law under the termination clause of the lease based on the tenants' earlier admissions that the tenants were the ones who had terminated the lease. Michel v. Abrahams, 254 Ga. App. 293, 562 S.E.2d 194 (2002) (decided under former O.C.G.A. § 24-3-30).

When the pleading is inconsistent, the admission, not the denial, prevails. Taylor v. Crawford, 119 Ga. App. 262, 167 S.E.2d 404 (1969) (decided under former Code 1933, § 38-402); Johnson v. Daniel, 135 Ga. App. 926, 219 S.E.2d 579 (1975);(decided under former Code 1933, § 38-402).

Effect of conflicting evidence on pleadings.

- Party is not prevented, per se, from making an admission in judicio in the party's pleadings as to a fact merely because conflicting evidence may exist as to that issue of fact. If the trial court admits that conflicting evidence and either the court (e.g., when ruling on a motion for summary judgment) or the jury (when reaching a verdict) considers the conflicting evidence on the merits, the pleadings at that point become amended to conform to such evidence. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 434 S.E.2d 63 (1993) (decided under former O.C.G.A. § 24-3-30).

When the trial court does not allow conflicting evidence to be admitted or, when applicable, elects not to consider the issue on the merits, the admission of fact made in the pleadings remains in full force and effect as an admission in judicio and is conclusive of the fact admitted. Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 434 S.E.2d 63 (1993) (decided under former O.C.G.A. § 24-3-30).

Admissions of fact in the pleadings can always be taken advantage of, etc. by the opposite party, and can be used as evidence, even though the pleadings should be stricken or withdrawn. Improved Fertilizer Co. v. Swift & Co., 15 Ga. App. 601, 84 S.E. 132 (1914) (decided under former Civil Code 1910, § 5775); Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 152 S.E. 136 (1930); Carver v. Carver, 199 Ga. 352, 34 S.E.2d 509 (1945); Stallings v. Britt, 204 Ga. 250, 49 S.E.2d 517 (1948) (decided under former Code 1933, § 38-402); Cummings v. State, 84 Ga. App. 698, 67 S.E.2d 156 (1951); Spurlock v. Commercial Banking Co., 151 Ga. App. 649, 260 S.E.2d 912 (1979) (decided under former Code 1933, § 38-402); Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980);(decided under former Code 1933, § 38-402);(decided under former Code 1933, § 38-402);(decided under former Code 1933, § 38-402).

When the pleading has been stricken, the admission contained in the pleading remains to be utilized as evidence of fact which the admitting party can explain but may be unable to conclusively refute. Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 385 S.E.2d 677, cert. denied, 192 Ga. App. 903, 385 S.E.2d 677 (1989) (decided under former O.C.G.A. § 24-3-30).

In an action seeking damages from an insurance company based on a claim that the company acted in bad faith when the company failed to settle an injured party's claim against an insured, the insurance company admission, in the company's answer to the complaint, that the injured party offered to settle the case for the policy limits of the insured's policy was properly offered to the jury as an admission that there was a policy of insurance. VFH Captive Ins. Co. v. Cielinski, 260 Ga. App. 807, 581 S.E.2d 335 (2003) (decided under former O.C.G.A. § 24-3-30).

Mesothelioma plaintiff's allegations in the plaintiff's complaint that the plaintiff was exposed to asbestos manufactured or distributed by numerous companies were admissible as admissions in judicio under O.C.G.A. § 24-8-821, even when withdrawn, and the manufacturers remaining in the suit could use these admissions as evidence that fault should be apportioned. Georgia-Pacific, LLC v. Fields, 293 Ga. 499, 748 S.E.2d 407 (2013).

Defendants were bound by admissions which were never expressly withdrawn.

- Defendants, who never expressly withdrew the admissions contained in the pleadings, were bound by the admissions, and even if the amendment to their answer impliedly withdrew the admissions, the defendants would still be faced with the admissions as evidence. Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 385 S.E.2d 677, cert. denied, 192 Ga. App. 903, 385 S.E.2d 677 (1989) (decided under former O.C.G.A. § 24-3-30).

Alternative pleadings.

- Civil Practice Act, O.C.G.A. Ch. 11, T. 9, which permits alternative pleadings does not change the rule of evidence that a party is bound by the party's judicial admissions. Ditch v. Royal Indem. Co., 205 Ga. App. 478, 422 S.E.2d 868, cert. denied, 205 Ga. App. 899, 422 S.E.2d 868 (1992) (decided under former O.C.G.A. § 24-3-30).

Considered as evidence in record.

- When matter is contained in a pleading, from which inferences may be drawn beneficial to the opposite party, it may be considered as evidence in the record in the party's favor. Johnson v. Daniel, 135 Ga. App. 926, 219 S.E.2d 579 (1975) (decided under former Code 1933, § 38-402); Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980); Metro Leasing, Inc. v. Health Educ. & Research Servs., Inc., 193 Ga. App. 157, 387 S.E.2d 399 (1989) (decided under former Code 1933, § 38-402);(decided under former O.C.G.A. § 24-3-30).

Can be explained or disproved.

- When the answer admitted an allegation of the petition but was later amended by striking the admission, the admission, though introduced as evidence for the plaintiff, was not conclusive, and could be explained or disproved by the defendant. Watkins v. Price Mercantile Co., 45 Ga. App. 272, 164 S.E. 231 (1932) (decided under former Civil Code 1910, § 5775).

Admission must be withdrawn from record.

- Party to a suit will not even be allowed to disprove an admission made in the party's pleadings without first withdrawing the admission from the record. Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 152 S.E. 136 (1930) (decided under former Civil Code 1910, § 5775); Maryland Cas. Co. v. Sammons, 67 Ga. App. 83, 19 S.E.2d 314 (1942); Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947); Dye v. Hirsch, 92 Ga. App. 803, 90 S.E.2d 332 (1955) (decided under former Code 1933, § 38-402); Plymouth Record Corp. v. Books, Inc., 92 Ga. App. 753, 90 S.E.2d 336 (1955); Grigsby v. Fleming, 96 Ga. App. 664, 101 S.E.2d 217 (1957) (decided under former Code 1933, § 38-402); Greene v. Gulf Oil Corp., 119 Ga. App. 87, 166 S.E.2d 626 (1969); Sambo's of Ga., Inc. v. First Am. Nat'l Bank, 152 Ga. App. 899, 264 S.E.2d 330 (1980) (decided under former Code 1933, § 38-402); Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 385 S.E.2d 677; 192 Ga. App. 903, 385 S.E.2d 677 (1989) (decided under former Code 1933, § 38-402);(decided under former Code 1933, § 38-402);(decided under former Code 1933, § 38-402);cert. denied,(decided under former O.C.G.A. § 24-3-30).

Rule only applies to factual admissions.

- Rule that a party cannot disprove an admission in pleadings without first withdrawing the admission from the record applies to admissions of fact, and is not applicable when the admission is merely the opinion on the part of the party making the admission as to the legal effect of the instrument sued on. Clift & Goodrich, Inc. v. Mincey Mfg. Co., 41 Ga. App. 38, 152 S.E. 136 (1930) (decided under former Civil Code 1910, § 5775); Scott v. Jefferson, 174 Ga. App. 651, 331 S.E.2d 1 (1985); Perry & Co. v. New S. Ins. Brokers of Ga., Inc., 182 Ga. App. 84, 354 S.E.2d 852 (1987) (decided under former O.C.G.A. § 24-3-30); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987);(decided under former O.C.G.A. § 24-3-30);(decided under former O.C.G.A. § 24-3-30).

Pleading "admission" that a particular person was an heir at law of the deceased was not conclusive against the pleader. Scott v. Jefferson, 174 Ga. App. 651, 331 S.E.2d 1 (1985) (decided under former O.C.G.A. § 24-3-30).

Pleading that was replete with a party's opinions and legal conclusions could not be considered an admission in judicio that would be effectively binding upon other parties. Mountain Bound, Inc. v. Alliant FoodService, Inc., 242 Ga. App. 557, 530 S.E.2d 272 (2000) (decided under former O.C.G.A. § 24-3-30).

Doctor's withdrawn admission that the doctor executed the guaranty did not create a genuine issue of material fact as to whether the doctor was personally bound by it as the doctor's withdrawn admission that the doctor guaranteed payment of all sums owing under the lease was only an opinion or conclusion as to the legal effect of that instrument and could not be used to the lessor's advantage. Citrus Tower Blvd. Imaging Ctr. v. David S. Owens, MD, PC, 325 Ga. App. 1, 752 S.E.2d 74 (2013).

Cannot take judicial notice of matters subject to proof.

- Trial court did not err in denying the defendant's request to take judicial notice of certain findings of fact and conclusions of law made by the trial court in the portion of the court's order granting the defendant's summary judgment motion regarding the plaintiff's premises liability claim because the trial court could not take judicial notice of matters that were the subject of proof in the case. Emory Healthcare, Inc. v. Pardue, 328 Ga. App. 664, 760 S.E.2d 674 (2014).

Appellants made admission in judicio, in their motion for new trial or in the alternative motion to amend judgment, of the fact that the probate court "entered a judgment styled 'Final Order"'; this admission in judicio expressed the fact that the order was entered on the date specified. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993) (decided under former O.C.G.A. § 24-3-30).

Use of withdrawn pleadings.

- When a part of a petition or of a plea is stricken by amendment, the stricken part may, if pertinent to any issue remaining in the case, be offered in evidence; but, unless so offered and admitted in evidence, it is not evidence for the consideration of the jury or proper matter for argument of counsel, save only when the amendment is made after the evidence is closed. Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S.E. 945 (1899) (decided under former Civil Code 1895, § 5188); Alabama Midland Ry. v. Guilford, 114 Ga. 627, 40 S.E. 794 (1902); Continental Trust Co. v. Bank of Harrison, 36 Ga. App. 149, 136 S.E. 319 (1926) (decided under former Civil Code 1895, § 5188);(decided under former Civil Code 1910, § 5775).

Withdrawal of admission by amendment of pleadings.

- In an action against a negligent driver's father, the father's initial admission that the vehicle was a family purpose vehicle was made regarding a legal opinion, i.e., agency under the family purpose doctrine, and, therefore, it could not be an admission in judicio or an admission against interest, because the admission was a legal opinion or conclusion that had been withdrawn by amendment from the pleadings. Wahnschaff v. Erdman, 232 Ga. 77, 502 S.E.2d 246 (1998) (decided under former O.C.G.A. § 24-3-30).

Defendant could not cross-examine plaintiff on allegations in plaintiff's complaint since the complaint was amended and the contentions therein were no longer solemn admissions in judicio. Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 524 S.E.2d 313 (1999) (decided under former O.C.G.A. § 24-3-30).

If the party amended the party's pleadings to withdraw the party's judicial admissions, the party could introduce evidence contravening the admissions, and if such contradictory evidence was admitted, even over the objection of the other party, then under O.C.G.A. § 9-11-15(b), such evidence could be deemed to amend the pleadings to withdraw the admissions. SAKS Assocs., LLC v. Southeast Culvert, Inc., 282 Ga. App. 359, 638 S.E.2d 799 (2006) (decided under former O.C.G.A. § 24-3-30).

In passengers' negligence suit against a taxicab company, to the extent the company's initial answer contained an admission under former O.C.G.A. § 24-3-30 that the driver was the company's employee, such admission was withdrawn by timely amendment, allowing positive evidence of the contrary to overcome it as an admission. Lopez v. El Palmar Taxi, Inc., 297 Ga. App. 121, 676 S.E.2d 460 (2009) (decided under former O.C.G.A. § 24-3-30).

Plaintiff's motion for partial summary judgment was improperly granted on the plaintiff's claim regarding breach of the stockholders' guaranties because the guaranties did not reference the corporate debtor, but, rather, referenced its doing business as designation; strictly construing the guaranties, the stockholders were not obligated to guarantee the debt of the corporate debtor; the trial court erred in relying on the withdrawn admissions as the admissions went to the legal effect of the guaranties and were not evidence of whether the written guaranties complied with the statute of frauds or the requirement that the debtor be identified; and the plaintiff's claim for attorney fees was improperly granted as the guaranties were unenforceable. Lynchar, Inc. v. Colonial Oil Industries, Inc., 341 Ga. App. 489, 801 S.E.2d 576 (2017).

Averments negativing existence of right claimed.

- If the averments of a complaint expressly negative the existence of a right claimed therein, or show the impossibility of its existence, they are to be regarded as evidence deposited in the record in favor of the opposite party, and demand the finding thereon in the party's favor. New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773, 116 S.E. 922 (1923) (decided under former Civil Code 1910, § 5775).

Admissions not binding on codefendant when interests adverse.

- Any admissions in judicio as to amounts owed to lenders by a corporation made by the first borrower were not binding on the corporation under former O.C.G.A. § 24-3-30 as the borrowers' interests were not joint but adverse as the first borrower was not a shareholder, officer, or director of the corporation. Walker v. Ace Auto Sales & Leasing, Inc., 294 Ga. App. 267, 668 S.E.2d 877 (2008) (decided under former O.C.G.A. § 24-3-30).

Effect of pretrial order.

- In a personal injury suit, a company explicitly preserved the company's argument that the company was not a proper party in the consolidated pretrial order which the trial court signed. Under Ga. Unif. Super. Ct. R. 7.2, this order expressly superseded the pleadings and established the issues in litigation; thus, the company was not estopped under former O.C.G.A. § 24-3-30 from asserting at trial that the company was not the proper party to be sued. First Support Servs. v. Trevino, 288 Ga. App. 850, 655 S.E.2d 627 (2007), cert. denied, No. S08C0717, 2008 Ga. LEXIS 388 (Ga. 2008) (decided under former O.C.G.A. § 24-3-30).

Judicial admission.

- Trial court did not err in granting summary judgment to the materialman on the materialman's action to recover under a lien discharge bond, as the surety admitted in surety's response to the materialman's amended complaint that the materialman had performed all conditions precedent to bring the materialman's action; the surety's admission was a judicial admission that bound the surety and contradicted its defense that the materialman had not fulfilled a lien statute notice requirement. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50, 609 S.E.2d 99 (2004) (decided under former O.C.G.A. § 24-3-30).

Inconsistent defenses.

- Defendant may, of course, file inconsistent defenses; but the plaintiff may take advantage of the contradictory nature of the defenses, and may use, as an admission against the defendant, a statement made is one of the pleas, although in another of the pleas there is set up a contradictory state of facts. The jury is not bound to accept the testimony of a witness which is contradictory to a plea one has filed. Wheeler v. Salinger, 33 Ga. App. 300, 125 S.E. 888 (1924) (decided under former Civil Code 1910, § 5775); Myers v. Woodson, 33 Ga. App. 748, 127 S.E. 888 (1925);(decided under former Civil Code 1910, § 5775).

Estoppel.

- When upon a suit on a contract, the plaintiff obtains a judgment or relief amounting to an adjudication in the plaintiff's favor, and is afterwards sued for a subsequent breach of plaintiff's own part of the contract, the plaintiff is estopped to deny the essential terms of the contract as pleaded in the former petition under which the plaintiff recovered. Florence, Phillips & Co. v. Newsome, 26 Ga. App. 501, 106 S.E. 619 (1921) (decided under former Civil Code 1910, § 5775).

Reviewing court on appeal will not consider the question of whether a plaintiff's alleged bill of sale was sufficient to constitute a valid lien or claim of title to the proceeds of the sale since the defendant had conceded in the court below, by a solemn admission in judicio, that the bill of sale of the plaintiff constituted a prior claim on the proceeds of the sale, and the defendant defended upon the sole ground of estoppel. C.I. & M. Dingfelder v. Georgia Peach Growers Exch., 182 Ga. 521, 186 S.E. 425 (1936) (decided under former Code 1933, § 38-402).

Estoppel not applicable in later and different action.

- Statements in pleadings are considered as judicial and not as evidentiary admissions, and for these purposes, until withdrawn or amended, are conclusive; but estoppels by admissions made in pleading apply only between parties and privies to the suit or litigation in which the admissions relied on as an estoppel were made; when such admissions in pleadings are introduced as evidence in a later and different action, they no longer operate as admissions in judicio but, rather, as evidentiary admissions and, as evidence, such admissions may be explained or contradicted. Foster v. State, 157 Ga. App. 554, 278 S.E.2d 136 (1981) (decided under former Code 1933, § 38-402).

Objection invalid.

- When the defendant admitted in the defendant's plea the execution by the defendant of an instrument which formed a part of the plaintiff's abstract of title, in view of the former statute it was not a good objection to the admission of the instrument in evidence that the instrument's execution had not been proved. Vizard v. Moody, 119 Ga. 918, 47 S.E. 348 (1904) (decided under former Civil Code 1895, § 5188).

Incorporating admission in brief of evidence.

- Admissions in pleading were properly incorporated in the brief of evidence, though stricken by amendment after evidence closed. Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S.E. 945 (1899) (decided under former Civil Code 1895, § 5188).

Admissions in brief used to find contempt.

- In a child custody dispute and contempt proceeding arising out of the parent's refusal to participate in a court-ordered custody evaluation, the trial judge could find the parent in contempt based on the parent's response to the motion in which the parent expressly defied the evaluation order and declared to be justified in refusing to sign the required documents. Murphy v. Murphy, 330 Ga. App. 169, 767 S.E.2d 789 (2014).

Instructions.

- If a party desires instructions to the jury touching admissions made in the other party's pleadings, the party should present a proper request therefor. Georgia Power Co. v. Rabun, 111 Ga. App. 63, 140 S.E.2d 568 (1965) (decided under former Code 1933, § 38-402).

In the absence of a proper request, a trial court does not err in failing to instruct the jury specifically that various portions of the opposite party's pleadings should be considered by the jury as admissions against that party. Crane v. Doolittle, 116 Ga. App. 572, 158 S.E.2d 426 (1967) (decided under former Code 1933, § 38-402).

Cited in Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694, 754 S.E.2d 655 (2014); First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538 (2014); Ga. Ports Authority v. Lawyer, 342 Ga. App. 161, 803 S.E.2d 94 (2017).

Am. Jur. 2d.

- 29A Am. Jur. 2d Evidence, § 787.

C.J.S.

- 31A C.J.S., Evidence, § 418 et seq.

ALR.

- Admissibility as evidence of pleadings as containing admissions against interest, 14 A.L.R. 22; 90 A.L.R. 1393; 52 A.L.R.2d 516.

Necessity in action on judgment of sister state confessed under warrant of attorney, of alleging and proving the law of the latter state permitting such judgment, 155 A.L.R. 921.

Admissibility in evidence of withdrawn, superseded, amended, or abandoned pleading as containing admissions against interest, 52 A.L.R.2d 516.

Admissibility of pleading as evidence against pleader, on behalf of stranger to proceedings in which pleading was filed, 63 A.L.R.2d 412.

Counsel's right, in summation in civil case, to point out inconsistencies between opponent's pleading and testimony, 72 A.L.R.2d 1304.

Admission of liability as affecting admissibility of evidence as to the circumstances of accident on issue of damages in a tort action for personal injury, wrongful death, or property damage, 80 A.L.R.2d 1224.