This was an action in trespass for killing sheep. The trial was had by jury, who found verdict for the plaintiff for the sum of $10, and further found, that, before the bringing of the suit, the defendant had tendered to the plaintiff the sum of $10, in payment of the damages done by him. On this verdict the court entered judgment for the plaintiff for the sum of $10, together with his costs, charges, etc. This judgment, so far as it relates to costs, cannot be sustained.
Section 32, Revised Statutes of Colorado, p. 511, provides: “ In all cases where a tender shall be made, and full payment offered, * * and the party to whom such tender shall be made doth refuse the same, and yet, afterward, will sue for the debt or goods so tendered, he shall not recover any costs.” It is claimed by the appellee, inasmuch as no motion was made for a new trial before the writ of error was sued out, this court cannot review the judgment. There is nothing in this point. The verdict was .regular. A motion for a new trial precedes the entering of the judgment, and cannot well follow it. Besides, there would be nothing to require a new trial. The error is not in the trial, but in the character of the judgment. This cause is remanded, with directions to the court below to vacate so much of said judgment as assesses costs against the defendant below. It is ordered that the appellee pay the cost.
Reversed.