6 Ga. App. 464 | Ga. Ct. App. | 1909
(After stating the foregoing facts.)
The court properly sustained the demurrer to the original answer and to the amendments thereto. The first amendment, denying the authority of the mayor to sign the name of the city to the note, was inconsistent with the distinct allegation and admission of the defendant in the second paragraph of the original answer, to the effect that the execution of the note by the defendant was admitted. Furthermore, in several paragraphs of the original answer, it is averred that J. F. Monk executed the contract and the note as the representative of the city and by its authority. It is, of ■ course, well settled that the defendant has a right to file as many inconsistent pleas as he deems necessary. Civil Code, §5052; Western & Atlantic R. Co. v. Pitts, 79 Ga. 536 (4 S. E. 921). But a suitor may always take advantage of the admissions of his adversary, and by his solemn admission in judicio a party is bound, and consequently, “where a defendant, in his answer to a petition filed in orderly and distinct paragraphs as required by statute, denies only the facts alleged in two paragraphs of the petition, and does not undertake to deny other allegations in the petition which are entirely inconsistent with the truth of the denial set up in the answer, and the plaintiff moves to strike the answer on this ground, it is not error for the court to strike the answer after giving the defendant ample opportunity to amend the same.” Burns v. Condon, 108 Ga. 794 (33 S. E. 907). Or, as held by this court, in Bedingfield v. Bates, 2 Ga. App. 107, 110 (58 S. E. 320), this denial of authority being inconsistent with the facts admitted, there was no error in striking that portion of the defendant’s plea on demurrer.. In Williams Mfg. Co. v. Warner Refining Co., 125 Ga. 411 (54 S. E. 95), the Supreme Court said: “The defendant could not both admit and deny the allegation of its indebtness to the plaintiff on the account sued on; and as its pleadings are to be taken more strongly ■against it, it is the admission, and not the denial which must prevail.”
Judgment affirmed.