money belonging to her. He claimed to be entitled to it because of an agreement which he had made with her that he should have the entire $480 for supporting and taking care of her the remainder of her life, and he claimed that the money belonged to him under this contract absolutely and was not subject to garnishment as her property.

Ed Quillian and Wm. M. Johnson, both of Gainesville, for plaintiff in error. A. C. Wheeler, of Gainesville, for defendant in er

ror.

HILL, C. J. (after stating the facts as above). [1] 1. The magistrate was right in permitting the appeal bond to be amended. "An appeal bond, and all other bonds taken under requisition of law in the course of a judicial proceeding, may be amended." Civil Code 1910, § 5707. Certainly this is true where the appeal is entered in good faith and no harm is done the opposite party by the amendment. Hendrix v. Mason, 70 Ga. 523, 527. In the present case the amend ment simply added to the caption the title of the case in which the appeal was entered, and the amendment made no change of any material part of the bond. It is doubtful if the amendment was necessary, as the caption of the original bond set up in the magistrate's answer clearly designated Whelchel, the garnishee, as the appellee, and this necessarily meant that Gittens was the appellant.

[2] 2. There was no error in allowing the docket to be introduced in evidence before the jury, showing that the judgment had been entered against the main defendant, Mary Hayes. It is the duty of the justices of the peace to keep dockets of all cases brought before them, in which must be entered the names of the parties, the returns of the officers of the court, and the entries of the judgments, specifying the amounts and dates of rendition (Civil Code, § 4679, par. 6), and these docket entries constitute primary evidence. N. C. & St. L. Ry. v. Brown, 3 Ga. App. 561, 564, 60 S. E. 319, and citations. [3] 3. The verdict of the jury in the justice's court was not void because it was writ

ten on a separate piece of paper, and not on any of the papers connected with the case. As was said in Sapp v. Parrish, 3 Ga. App. 235, 236, 59 S. E. 821, "We know of no law which requires the verdict to be written upon any particular paper, and we are not cited to any decision or statute to that effect." See, also, Sou. Ex. Co. v. Maddox, 3 Ga. App. 223, 59 S. E. 821, 822. While the better practice is to write the verdict on the initial pleading, dated and signed by the foreman, none of these details are essential to a legal verdict.

[4] 4. The failure of the magistrate to enter the judgment which he had rendered in favor of the garnishee on the date of the trial was immaterial, in view of the explanation made in his answer; this explanation being that he had rendered the judgment and had omitted to render it on the date he had entered it on the docket, but that in fact he had entered this judgment on the docket during the term. There was no question but that this judgment was the one from which the appeal was entered, and it was too late for the appellee to raise the question for the first time on certiorari, and after the verdict in the appeal case had been returned against him.

[5] 5. We think, under the evidence set forth by respondent in his answer, that the verdict in this case in favor of the plaintiff against the garnishee was demanded. Whether the garnishee held possession of the money belonging to Mary Hayes, as guardian or under the contract which he had made with her, certainly he had no right to this money as against a bona fide claim reduced to judgment in favor of one who had actually previously supported Mary Hayes, giving her both board and lodging. He was entitled to be paid, and the verdict of the jury in the justice's court was right, and, even if the justice committed any errors, the verdict was so strongly demanded by the evidence that any error of law would have been immaterial. We think therefore the judge of the superior court erred in sustaining the certiorari. Judgment reversed.

COLLINS v. CITY OF DALTON.

(No. 4,225.) (Court of Appeals of Georgia. Jan. 22, 1913.)

(Syllabus by the Court.)

1. HAWKERS AND PEDDLERS (§ 3*)-MUNICIPAL CORPORATIONS (§ 642*) LICENSE TRAVELING SALESMAN-REVIEW-EVIDENCE -RECORD.

There was evidence in the record, according to the finding of the jury upon the traverse, which authorized the inference that the accused was a peddler, rather than a traveling salesman; and hence the judgment of the recorder is supported by the ruling in Kimmel v. Americus, 105 Ga. 697, 31 S. E. 623.

(b) A reviewing court cannot undertake to decide whether a conviction of a violation of a city ordinance is unsupported by the evidence, when the ordinance itself is not presented in the record, and still the evidence would apparently authorize the rendition of the judgment to which exception is taken.

[Ed. Note.-For other cases, see Hawkers and Peddlers, Cent. Dig. §§ 3-6; Dec. Dig. § 3;* Municipal Corporations, Cent. Dig. $$ 1412-1415; Dec. Dig. § 642.*]

2. JUSTICES OF THE PEACE (§ 205*)-CERTIO

RARI-TRIAL-EXCEPTIONS.

As the certiorari in the present case was called out of its order, exceptions to the answer of the magistrate' could properly be filed at any time during the first term, prior to the consideration of the case by the presiding judge. Consequently the trial judge did not err in overruling the objection to the exceptions filed in the present case, which he certifies did not affect the finding of the jury upon

the traverse.

[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 793-799; Dec. Dig. § 205.*]

3. MUNICIPAL ORDINANCE-VIOLATION-EVI

DENCE.

While the evidence of the defendant's violation of the municipal ordinance is weak and unsatisfactory, it is sufficient to authorize the finding of the recorder, and it was not error for the trial judge to overrule the certiorari. Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by the City of Dalton against L. C. Collins for violation of the peddler ordinance. From a judgment on certiorari in favor of the City, defendant brings error. Affirmed.

F. K. McCutchen and C. D. McCutchen, both of Dalton, for plaintiff in error. M. C. Tarver, of Dalton, for defendant in error.

RUSSELL, J. Judgment affirmed.

BUCK et al. v. DUVALL. (No. 3,793.) (Court of Appeals of Georgia. Sept. 24, 1912.)

(Syllabus by the Court.)

VENDOR AND PURCHASER (§§ 97, 193, 301, 316, 334*)-RESCISSION-PURCHASE PRICE - RESALE OF PROPERTY-ACCOUNTING-VALUE OF TIMBER-VENDEE'S RIGHT TO CUT.

This case is fully controlled by the decision rendered when the case was previously here. 9 Ga. App. 656, 72 S. E. 44. The defendants' answer failed to allege a rescission. There is nothing in the answer to negative the right of the vendee, under the bond for titles, to cut and sell the timber, the value of which the defendants sought to set off against the plaintiff's demand for the purchase price, which the defendants were alleged to have received in a resale of the property without notice to the holder of the bond for title. (The plaintiff's action was one brought by the holder of a bond for title to recover the amount defendants had received in sale of the premises described in the bond for title, which sale had not been authorized by him.) There could not be a rescission, unless the vendors notified the vendee (the holder of the bond for title) of their purpose to rescind, and tendered him the amount he had previously paid. The vendors, holding the legal title, had the right to proceed against the vendee, the holder of the bond for title, and to recover the unpaid purchase price, by a sale of the premises under their judgment, or could have recovered possession of the land in question by buying it in at the sale consequent upon the levy of a fi. fa. for the unpaid purchase price. In that event, the vendors would have been discharged purchase price that they had received from the from any liability to repay the portion of the vendee, although they may have secured the property at a price far below its value. But, having elected to totally disregard their bond for title and the rights of the purchaser thereunder, the sale effected by them must be treated as having been made by them as agents for the vendee, and they must account to him for the price received by them on resale, less the amount due to them by him upon the original purchase-money notes. As to the right of a purchaser of land in possession under bond for title to cut and sell timber, see Guin v. Hilton & Dodge Lbr. Co., 6 Ga. App. 484, 65 S. E. 330.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 161, 162, 166, 399– 401, 844, 932, 933, 959-980; Dec. Dig. 88 97, 193, 301, 316, 334.*]

Action by W. L. Duvall against E. A. Buck and another. Judgment for plaintiff, and defendants bring error. Affirmed.

Headnote substituted for prior report in 75 S. E. 820.

RUSSELL, J. Judgment affirmed.

BROWN & HALEY v. BROWNING.

(No. 4,512.)

2. CONTEMPT (§ 30*) - PUNISHMENT - POWER of Court.

The city court of La Grange is not a constitutional court, in the sense of having been

(Syllabus by the Court.)

NEW TRIAL (§ 70*)-GROUNDS.

The court did not err in overruling the certiorari. The only issue was as to the terms of the contract of rental and sale. It was undisputed that the defendant in error sold to the plaintiffs in error a stock of merchandise and rented to them a storehouse, and subsequently purchased from them various articles of merchandise, as to the sum total of which the parties agreed. According to the testimony of the defendant in error, there was an express agreement that his indebtedness to the plaintiffs in error for merchandise, if any, was to be credited upon the notes they had given him, with the stipulation that, up to the amount of the account due by him, there was to be a deduction pro tanto from the interest accruing upon the notes, but that his rental should be paid monthly. If the jury believed this testimony, the defendant in error had the right to sue out the distress warrant; and as the finding of the jury was supported by some evidence, and there were no errors of law on the trial, the judge of the superior court did not err in refusing another trial.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 142, 143; Dec. Dig. § 70.*]

Error from Superior Court, County; D. W. Meadow, Judge.

Franklin

Distress proceedings by J. E. Browning against Brown & Haley. Judgment for plaintiff, and defendants bring error. Af.

firmed.

Alex Johnson, of Royston, for plaintiffs in error. Dorough & Adams, of Royston, for defendant in error.

RUSSELL, J. Judgment affirmed.

HEWITT v. STATE. (No. 4,432.) (Court of Appeals of Georgia. Jan. 22, 1913.)

(Syllabus by the Court.)

1. CONTEMPT (8 30*)-PUNISHMENT-POWER OF COURT.

The courts of this state may be divided into two classes: First, those courts which are expressly created by the Constitution, such as the Supreme Court and the Court of Appeals, the superior courts, justices' courts, and courts of ordinary; and, second, such other courts as are authorized by the Constitution to be established by legislative enactment, such as the city courts. The courts first above mentioned have an inherent power to define contempts, which power cannot be abridged or taken away by legislative action. In re Fite, 11 Ga. App. 665, 76 S. E. 397; Bradley v. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157. Courts of the second class mentioned, with reference to contempts, are restricted to the legislative classification set out in Civ. Code 1910, 4643, and their power to define contempts or punish therefor does not extend to cases not therein set out. Bradley v. State, supra.

any

[Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 91, 93, 94; Dec. Dig. § 30.*]

was created by legislative enactment (Acts 1899, p. 385), under authority given by the Constitution to the Legislature. It, therefore, has no inherent power to define contempts, but is limited to those set out in Civ. Code 1910, § 4643.

Cent. Dig. 88 91, 93, 94; Dec. Dig. § 30.*] [Ed. Note. For other cases, see Contempt, 3. ERROR OF LAW-CONTEMPT.

The alleged contempt of which plaintiff in error was adjudged guilty, under the facts. does not fall under any of the cases of contempt set out in section 4643, Civ. Code 1910, supra; and, for this reason, the judgment finding him guilty of contempt of court was contrary to law.

Error from City Court of La Grange; H. H. Revill, Judge.

Sam Hewitt was convicted of contempt, and brings error. Reversed.

M. U. Mooty and Arthur Greer, both of La Grange, and S. Holderness, of Carrollton, for plaintiff in error. Henry Reeves, Sol., of La Grange, for the State.

(Court of Appeals of Georgia. Jan. 22, 1913.)

(Syllabus by the Court.)

1. PHYSICIANS AND SURGEONS (§§ 14, 18*)-— MALPRACTICE-CARE REQUIRED-PETITION.

Civ.

The Code of this state declares that "a person professing surgery must bring to the exercise of his profession a reasonable degree of care and skill, and that any injury resulting from a want of such care and skill will be a tort for which a recovery may be had." Code 1910, § 4427. The exercise of this degree of care and skill is the measure of professional duty in all cases, and whether this degree of care and skill has been exercised in a given case is a question of fact for the jury. 5 Thompson on Negligence, § 6713; Akridge v. Noble, 114 Ga. 949, 41 S. E. 78. Under the Code section quoted and the rules of law above announced, a petition in the suit of a woman against a physician and surgeon to recover damages for alleged malpractice was not subject to general demurrer, the petition alleging in substance, that the defendant had made an unskillful and improper diagnosis of her physdiagnosis he removed her left ovary, although ical condition; that following this incorrect it was not diseased, and its removal, in whole or in part, was unnecessary and against her expressed desire; that this removal of the ovary was due to his want of knowledge and skill as a surgeon, and to his reckless disregard of her health; that after this unskillful and unnecessary operation, and without giving the petitreatment, and before the wound caused by the tioner proper and necessary medical care and operation had sufficiently healed, he sent her home; that from want of care the wound caused by the operation had never healed; that the defendant exhibited reckless disregard of the petitioner's health, and willfully injured her health; that the operation was done without necessity and without reasonable skill and care as a surgeon; and that, due to said unskillful and unnecessary operation, and lack of