Opinion of the Court-NASH, J. [1 Wash. "(5) You erred in entering said judgment without any evidence or proof of plaintiff's claim. "(6) You erred in rendering any judgment against both of said defendants when said defendant Con O'Brien alone had been served or notified." And the justice before whom said cause was tried, in obedience to the writ of certiorari, returned the following in answer to the allegations of the affidavit therein: "As to the first ground of error, it is true that I did not enter upon my docket the appearance of Con O'Brien, and it is also true that Con O'Brien did not at any time appear in person, and the agents representing both of the defendants did not appear until 15 minutes past 11 o'clock of said appearance day, at which time they filed the statement returned herewith. "As to the second ground of error alleged in this affidavit, it is true that I did not enter in my docket the order of continuance of said cause until the 24th day of September, 1887. And it is true that I made such order, and announced the same, but not until after the appearance of the defendants, and after 11 o'clock of said day as above set forth, and after plaintiff had left the court room, and said order was made in the presence and hearing of said defendants' agents. And I will further add that said agents were present before me prior to 11 o'clock of said day, and prior to the time of plaintiff's departure, but did not file any papers in said case until 15 minutes past 11, and I did not know who they were until said time. "As to the third ground of error alleged in said affidavit the facts are these: At 11 o'clock plaintiff's attorney, finding no papers on file for defendants, arose before me and said: 'I now demand judgment.' To this, shortly afterwards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment, and said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed; and then I again said, 'I will have to render judgment,' and referred said agents to ? 1781 of the Code of Washington Territory; and the agents made some objection, and then filed and swore to said statement of account. The said agents also about this time read to me certain sections of the law, and requested me to order the case continued until the 24th day of September, 1887, and Jan. 1889.] Opinion of the Court-NASH, J. for the purpose of obtaining such continuance they stated to me that defendant McCoy was a very material witness on his own behalf, and could not possibly be present until said date, and in support of said statement filed a telegram and affidavit with me, which are transmitted herewith. I then said, 'I do not know but what I can grant a continuance,' and finally I told them that I would allow a continuance as requested, and marked the envelope containing the papers of the case, 'Continued until September 24, 1887, at 10 o'clock A. M.,' and then said agents departed. About 4 o'clock P. M. of said day the plaintiff's attorney returned to my office and demanded execution, and I told him what had been done in his absence. Said attorney insisted that he had a valid judgment, and told me to consult a disinterested attorney, which I did, and then concluded upon such advice that it was my imperative duty, under 1781 of the Code of Washington Territory, to render judgment as of the time of 11 o'clock of said day, and then made up my docket entries as shown. "As to the alleged grounds of error, it is true that I had no evidence of plaintiff's claim other than the complaint. "As to the sixth ground of error, it is true said judgment is against both of said defendants, and that Con O'Brien alone was served." These errors are for our consideration in this court. It is conceded that a justice of the peace is a creature of the statute, and the court one of limited jurisdiction. Section 1755 of the code provides: "The parties shall be entitled to one hour in which to make their appearance after the time mentioned in the notice for appearance, but shall not be required to remain longer than that time unless both parties appear; and the justice being present, is actually engaged in the trial of another action or proceeding; in such case he may postpone the time of appearance until the close of such trial." Section 72 of the code thus defines an appearance: "A defendant appears in an action. when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney gives notice of appearance for him." It will be seen from the foregoing that a mere corporal presence of the defendant or his Opinion of the Court-NASH, J. [1 Wash. agent at the place of trial is no appearance of the defendant. Some act must be performed. He must answer, demur or give the plaintiff written notice; or if attorney appears, he must give notice of appearance. Steinbach v. Leese, 27 Cal. 295. Pleadings, however, can be made either orally or in writing, except in certain cases. (Code, 1757.) But the statute is imperative. He must appear, as heretofore defined, within the hour. And when a defendant who has been served with a true copy of the complaint and notice fails to appear and plead within the time specified in the notice, or within an hour thereafter, it is the duty of the court to enter up judgment without further proof or evidence. The court has no discretion or alternative. It is a duty enjoined by the statute, and the plaintiff can demand it as a matter of right. Code, § 1781; Wilcox v. Clement, 4 Denio, 160. And we hold that the justice in this case simply performed his duty, and did render a judgment in this case upon the expiration of the hour. There being no appearance of the defendants, and no pleadings on file in the case, and the plaintiff then and there demanding judgment, no proof was necessary. The demand of the plaintiff stood confessed. The justice, in his return to the writ, says: "As to the third ground of error alleged in said affidavit the facts are these: At 11 o'clock, plaintiff's attorney, finding no papers on file for defendants, arose before me and said: 'I now demand judgment.' To this, shortly afterwards, the said agents, though not known to me at the time to be such, made some objection, and I then said I would have to render judgment, and the said agents said they did not think I had grounds for doing so, and then plaintiff and his attorney departed, and then I again said, 'I will have to render judgment,' and referred said agents to 1781 of the Code of Washington Territory." This court holds that this was a rendering of a judgment by the justice, and that he was simply doing what he was required to do by law. Jan. 1889.] Opinion of the Court-NASH, J. Having performed this duty, he at once lost all control over said judgment. He could neither open it up, change, or modify it. His judicial acts and power over said judgment were exhausted forever the moment he rendered the judgment, and all his acts thenceforward in regard to said judgment were and could only be ministerial. It follows, therefore, that all acts of the justice thereafter in regard to continuing the case, etc., were mere nullities. After he had rendered judgment-as we have held hedid do upon the demand of plaintiff he should proceed within the next three days to enter the same. Code Wash. T., 1781-1783; Griffin v. Pitman, 8 Or. 342; Dunnagan v. Shaffer, 48 Ark. 476; Hawes, Jur., § 32. And we find that this was done the same afternoon. In entering up said judgment, however, the justice committed an error. The defendants are alleged in the complaint to be partners, but only one of them, Con O'Brien, was served. Judgment (personal) was rendered against both defendants. This was error. Judgment could only be rendered against the defendant served. Section 68 of the code provides, however, that where the action is against two or more defendants and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows: "(1) If the action be against the defendants jointly indebted upon a contract, he may proceed against the defendants served, unless the court otherwise direct, and if he recover judgment, it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served." For error in entering up the judgment only, as here set forth, this case is remanded to the district court, with direction to enter up judgment in accordance with this opinion; all costs, however, to be taxed against the defendants (plaintiffs in error here) in this case. BURKE, C. J., and ALLYN, J., concur. Opinion of the Court-ALLYN, J. [1 Wash. [No. 583. Decided January 29, 1889.] JOHN B. STANDLEY V. DAVID MARSH. SHERIFFS AND CONSTABLES-WRONGFUL LEVY-INDEMNITY FROM A sheriff who, under express directions of a creditor, attaches property pointed out to him by the latter, and does not know or have notice that it is the property of another than the debtor, may recover indemnity of the attaching creditor after judgment against the sheriff for the wrongful levy. Appeal from District Court, Whitman County. Action by David Marsh against John B. Standley to recover indemnity for a judgment obtained against plaintiff as sheriff. Judgment for plaintiff, and defendant appeals. Allen & Crowley, for appellant. Doolittle, Pritchard & Lehman, for appellee. The opinion of the court was delivered by ALLYN, J.-David Marsh, as sheriff of Whitman county, September 15, 1884, attached 270 sacks of wheat at the instance of John B. Standley, plaintiff in the suit of Standley v. George W. Landes. October, 1885, one Seat began an action for the unlawful detention of, and damage to, the wheat while thus attached and held by the sheriff, and on December 20, 1886, secured a judgment for $25 and costs; the whole amounting to $383.25. This amount the sheriff now seeks to recover from Standley, the attaching creditor. Judgment was had for the sheriff, Marsh, and the defendant appeals. The pleadings are not all in the record; and while the argument of appellant is largely upon the theory that the sheriff was guilty of negligence, and was therefore alone liable, from what is before us of the record, and the amount of the judgment, etc., we are fairly satisfied that the judgment against the sheriff was a nominal one, and was not given |