Four Square Construction Co. v. Jellico Coal & Charcoal Co.
145 Ga. App. 650
Ga. Ct. App.
1978
Check Treatment
Smith, Judge.

We affirm the trial court’s grant of appellee’s motion for summary judgment.

In their answer, appellants entered an admission to the following paragraph of appellee’s complaint: "The Defendants are jointly and severally indebted to the plaintiff in the sum of $23,651.46 on account for building materials sold and delivered to the defendant, Four Square Construction Co., Ine., by plaintiff, plus one and one-half percent service charge thereon per month from May 4,1977 to the date of Judgment. Said account is past due and unpaid, demand having been made by plaintiff on the said defendants, a true and correct copy of the Statement of Account being attached hereto as Exhibit A and made a part hereof.”

Submitted February 1, 1978 Decided April 11, 1978. Alexander J. Repasky, for appellants. John G. McCullough, A. Mims Wilkinson, Jr., for appellee.

"A party to a suit will not be allowed to disprove an admission in his pleadings without withdrawing it from the record.” Atlantic Mut. Fire Ins. Co. v. Chadwick, 115 Ga. App. 850, 851 (156 SE2d 182) (1967); Anderson v. Oakley, 133 Ga. App. 758 (1) (212 SE2d 875) (1975). It is irrelevant that another section of appellants’ answer essentially denies liability, as "where the answer contains both an admission and a denial, the admission must control.” Atlantic Mut. Fire Ins. Co., supra; see also Johnson v. Daniel, 135 Ga. App. 926 (2) (219 SE2d 579) (1975). Appellants not having stricken from the answer their admission of liability, no issue of fact remained as to their liability, and the trial court properly granted summary judgment to appellee.

Judgment affirmed.

Deen, P. J., and Banke, J., concur.