
    24520.
    Harris et al. v. Robison.
   Sutton, J.

The facts in the instant ease are identical with the facts in the foregoing cases of Harris v. Houston and Harris v. McGuire, ante, 116, except that the plaintiff laborer in this proceeding claims that $13.20 is due him as wages by the defendants, and in the proposed counter-affidavit submitted by the defendants and dismissed by the justice’s court the defendants set up, among other things, that they were “only indebted to the plaintiff in the sum of $5.72, and they plead the same as a tender and pay the same into court.” It is provided by the Civil Code (1910), § 3366 (7), that “If only a part of the amount claimed is denied, the amount admitted to be due must be paid before the affidavit shall be received by the officer.” The principles ruled in Harris v. Houston, supra, are controlling in this case, and the judge of the superior court erred in denying the defendants’ petition for certiorari and in affirming the judgment of the justice’s court dismissing defendants’ proffered counter-affidavit.

Decided April 9, 1935.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.  