1. "A counter-affidavit to the foreclosure of a laborer's lien may be interposed at any time before the sale of the defendant's property. There is no law requiring its interposition at the first or any other term after the foreclosure. Smith v. McPherson, 78 Ga. 84. Nothing to the contrary is ruled in any of the following cases: Giddens v. Gaskins, 7 Ga. App. 221 (66 SE 560); Tipton v. Conrad, 21 Ga. App. 593 (94 SE 815); Wilson v. Griffin, 22 Ga. App. 451 (96 SE 395); Harvey v. Johnson, 28 Ga. App. 287 (111 SE 576)." Gardner v. Parker, 32 Ga. App. 608 (1) (124 SE 181).

2. A counter-affidavit to the foreclosure of a laborer's lien which admits that an amount less than the amount claimed in the foreclosure is due and which fails to tender into court the amount admitted due is subject to dismissal and is, therefore, a nullity and no proper counter-affidavit. Code 67-2401; Carter v. Commercial Credit Co., 58 Ga. App. 470 (198 SE 792).

3. Where, after the levy of a fi. fa. issued on the affidavit of a laborer claiming a lien on the property of a named defendant, the defendant filed an affidavit denying the indebtedness in the amount claimed but admitting that he owed the plaintiff a lesser amount, but which counter-affidavit failed to tender into court the amount admitted to be due, such affidavit was legally insufficient to bring the case into court and to arrest the proceeding. However, where the case was nevertheless returned into court by the sheriff and while the matter was still before the court the defendant in fi. fa. voluntarily dismissed his original counter-affidavit and filed a new counter-affidavit alleging exactly the same facts, but further alleging a tender to the plaintiff in fi. fa. of the amount admitted to be due, the refusal of the plaintiff in fi. fa. to accept that amount, and which second affidavit tendered into court the sum admitted to be due, such second affidavit being tendered and filed before the actual sale of the property under the levy was not too late, and since it made an issue as to the amount claimed to be due and as to the right of the plaintiff in fi. fa. to have a lien it was not proper for the trial court to dismiss such counter-affidavit. See Harris v. Houston, 51 Ga. App. 116 (179 SE 645); and Kennedy v. Miller, 179 Ga. 234 (175 SE 588).

5. It follows that the judge of the superior court erred in dismissing the second counter-affidavit.

James Maddox, contra.