as of November 10, 1923," and made an order accordingly, except as to an error in calculation to which we shall refer later on in this opinion.

[1] It is urged by appellant that the Industrial Board was without jurisdiction to hear the cause, for the reason that there was no evidence showing that prior to the filing of the application by appellee, there had been an effort by the parties to agree as to compensation, citing In re Moore (1923) 79 Ind. App. 470, 138 N. E. 783. Appellant having filed answers, and at the hearing contested the application, it cannot on appeal avail itself of the claim that the board was without jurisdiction. T. J. Dye & Son v. Nichols (1923 Ind. App.) 141 N. E. 259.

*

*

[2] Appellant points out that clause (e) of section 38 of the Workmen's Compensation Act (Acts 1919, p. 165), among other things, provides that "the dependency of a widow * shall terminate with * * her marriage subsequent to the death of the employé," and with much earnestness contends that by reason of this provision of the act the marriage of appellee to McCormick, though voidable, nevertheless was a marriage which terminated absolutely and permanently the dependency of appellee as widow of James E. Wells. We do not concur in this view. Giving the provision referred to a broad and liberal construction, as we must, a marriage, within the meaning of the statute, is not a void or voidable marriage which may at once be annulled, but a valid and subsisting marriage.

award. Appellee's receipt, under the circumstances, was not conclusive of the facts recited therein. Birdsell Mfg. Co. v. Tripp (1923 Ind. App.) 141 N. E. 252; Ft. Branch Coal Co. v. Farley (1921) 76 Ind. App. 37, 130 N. E. 132, 131 N. E. 228.

[5] The order of the Industrial Board on the hearing of appellee's petition for reinstatement is that appellant shall, commencing November 10, 1923, pay to appellee $13.20 per week during the period of her dependency "not exceeding 257 weeks." It' is clear that there was an error in calculation. Appellant had already made regular payments under the original award for a period of 94 weeks. The award should have been for appellant to continue to pay, under the original award, for the remainder of the 300 weeks period.

For this error the award is reversed, with instructions to the Industrial Board to order appellant to continue payments under the original award for the remainder of the compensation period of 300 weeks, from November 10, 1923.

AMERICAN MILLS CO. v. FIFER, Treas-
urer, Clark County. (No. 12043.)
(Appellate Court of Indiana. Division No. 2.
March 18, 1925.)

1. Taxation 543(1) — Taxpayer's action,
against county treasurer to recover taxes
wrongfully assessed, cannot be maintained.
Action by taxpayer against county treasurer
recover taxes wrongfully assessed cannot be
10139u12, 10139w12 (Acts 1919. c. 59, §§ 332,
maintained, as Burns' Ann. St. Supp. 1921, §§
334), furnish taxpayer an adequate remedy
for recovery of any tax paid by it by filing claim
with board, and appealing if relief is denied.
2. Taxation 537-Taxpayer's right to re-
cover taxes wrongfully assessed not changed,
because county treasurer had distributed
money.

[3] In a proper proceeding, the marriage was annulled by a court of general jurisdic-to tion, and since section 38, supra, does not include voidable marriages, the decree of annulment necessarily related back to the time of the marriage contract. There is respectable authority that judgments and decrees directly determining the status of parties, such as marriage, divorce, and the like, are in that respect judgments in rem, and are evidence of the status which they determine, as to all persons, whether parties thereto or not. Burlen v. Shannon (1855) 3 Gray (69 Mass.) 387; Clews v. Bathurst, 2 Strange, 960; Gould v. Crow (1874) 57 Mo. 200; Dick-tribution of money. son v. Dickson (1826) 1 Yerg. (9 Tenn.) 110, 24 Am. Dec. 444; Hood v. Hood (1872) 110 Mass. 463; Wottrich v. Freeman (1877) 71 N. Y. 601; Stuart v. Cole (1906) 42 Tex. Civ. App. 478, 92 S. W. 1040; Black on Judgments (2d Ed.) § 803; Greenleaf on Evidence (15th Ed.) § 525; Freeman on Judgments (4th Ed.) § 610.

Taxpayer's right to recover taxes wrongfully assessed would not be changed, because after filing of claim for refund with board of commissioners, county treasurer had made dis

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

Action by the American Mills Company against Ottis B. Fifer, Treasurer, Clark County. Judgment for defendant, and plaintiff appeals. Affirmed.

Wilmer T. Fox, of Jeffersonville, for appellant.

Burdette C. Lutz, of Jeffersonville, for appellee.

[4] It cannot be said by appellant, that by the alleged settlement with appellee it was misled to its disadvantage. Appellant merely paid to appellee the balance due her under the original award to the date of the marriage. The reinstatement adds nothing to MCMAHAN, J. Appellant filed its comappellant's liability as fixed by the original plaint in the Clark circuit court to recover

(146 N.E.)

taxes paid to the treasurer of said county. with the board of commissioners under the It is alleged that the assessment of such taxes was void; that appellee had levied upon certain personal property owned by appellant; that in order to avoid and prevent a threatened sale of the property by the appellee, it paid the amount of such taxes so assessed, and that all of the money so paid by appellant was in the possession of appellee when the complaint was filed. A demurrer to the complaint was sustained, and judgment rendered against appellant.

Appellant contends that the property on which the assessment was made was not taxable, and that the assessment was void. In view of the conclusion we have reached, it is not necessary for us to decide this question.

[1, 2] Section 10139u12, Burns' 1921 (section 332, p. 198, Acts 1919), provides that:

statute asking for a refund before the money had been distributed, it would have been the duty of the board, or the court on appeal, in case the assessment was void for any reason to have refunded all of the money so paid. And if, after the filing of such claim, the treasurer had made distribution of the money, the right of the person so paying would not be changed. Du Bois v. Board of Commissioners, 10 Ind. App. 347, 37 N. E. 1056. See, also, Cleveland, etc., R. Co. v. Board of Commissioners, 19 Ind. App. 58, 67, 49 N. E. 51.

Indiana Manufacturing Co. v. Koehne, 188 U. S. 681, 23 S. Ct. 452, 47 L. Ed. 651, was a case where the plaintiff, claiming that certain property, owned by it was not subject to taxation, began an action in the Circuit Court of the United States for the District of Indiana to enjoin the collection of taxes which had been assessed thereon. The court in affirming a decree dismissing the action, after referring to the statute providing for the refunding of taxes of which the present statute is a re-enactment, and after reviewing the decisions of our Supreme Court and of this court, said:

"In all cases where any person or persons or body politic or corporate shall appear before the board of commissioners of any county in this state, and establish by proper proof, that such person [or persons] or body politic or corporate has at any time paid for any year or part thereof, any amount of taxes which were wrongfully assessed against such person or body politic or corporate in such county, it shall be the duty of said board to order the amount, so proved to have been wrongfully paid, to be refunded to said payer from the county treasury, so far as the same was assessed and paid for county taxes, and the county auditor shall draw his warrant therefor, and the county treasurer shall pay the same out of any money not otherwise appropriat-that court to either the Appellate Court or the

ed: *

Section 10139w12, Burns' 1921, being section 334, p. 198, Acts 1919. provides for an appeal from the board of commissioners, and that on appeal the court shall decide the merits of the case and order the tax refunded, or not, as the case may be. Appellant did not file any claim before the board of commissioners for a refund of the taxes so claimed to have been wrongfully assessed and collected.

Appellee insists that the remedy provided by the statute is exclusive; that the legislative intent was to furnish a simple and direct method for the recovery of taxes wrongfully assessed and collected; and that court proceeding was not contemplated, except by appeal.

Appellant contends that the statute makes no provision for the recovery of city, town, or township taxes, and for that reason does not furnish him an adequate remedy. We cannot concur in this contention. When appellant filed its complaint, the money was all in the possession and custody of appellee. No part of it had been paid out or distributed. It was being held by appellee as a trustee, either for the use of appellant, or for the proper funds to which it respectively belonged. If appellant had filed his claim

"Complainant could set forth in its petition to the county commissioners its claim under the federal Constitution for the exemption of the letters patent owned by it from taxation, and it could make the same claim if the board refused to admit it, in its action in the circuit court and on appeal from an adverse decision in

Supreme Court of the state, and if either court to which the appeal was taken and before which the question was raised decided it adversely to the complainant, a writ of error would lie from this court and the subject could be reviewed and finally decided here. There is no doubt, therefore, of the adequacy of the remedy at law, provided the act of 1853 is in force." (Our italics.)

And we hold that the sections of the tax law in 1919, herein before referred to, furnished appellant an adequate remedy for the recovery of any tax paid by it.

This court in Board of Commissioners v. Adler, 77 Ind. App. 296, 133 N. E. 602, held that section 6090a, Burns' 1914, which section was re-enacted and became a part of the tax law of 1919 (section 332, p. 198, Acts 1919), providing for the filing of a claim before the board of commissioners furnished an exclusive remedy for the recovery of taxes wrongfully assessed, and that no action could be maintained against the commissioners to recover such taxes, and that, where the Legislature prescribed a right and a method by which such right could be enforced, the statutory remedy was exclusive.

Appellant has cited no authority holding that an action at law may be maintained against the county treasurer to recover the amount of taxes wrongfully paid, and we

Action by Thomas Keith against the Pittsburgh, Cincinnati, Chicago & St. Louis RailWilmer T. Fox, of Jeffersonville, for ap- road Company. From a judgment for plainpellant. tiff, defendant appeals. Affirmed.

(Appellate Court of Indiana, Division No. 2. 1920, appellee and his employer agreed that March 11, 1925.)

(146 N.E.)

a consideration of the action of court in over- | There is some evidence that appellee requestruling that motion. The specifications in ed the lumber company to hold this check, that motion are that the verdict is not sus- although this is denied by appellee. There tained by sufficient evidence; that the ver- is no evidence that the lumber company dict is contrary to law, and that the court made any objection to receiving the check erred in giving certain instructions. from appellee, or that it has ever returned or offered to return it to appellee.

In addition to the facts hereinbefore stated, there is ample evidence to prove the following facts: On September 22, 1920, the lumber company, through its insurance carrier, paid the medical and surgical expenses occasioned by reason of the injury, to appellee; the amount so paid being $12. When appellee signed the compensation agreement and accepted the check for $20.76, he did so with the understanding and belief that it would not interfere with his suit against ap pellant; that at that time he stated to Mr. Carter, the manager of the lumber company, that if it interfered with such suit he did not want it; that Mr. Carter at that time said it didn't satisfy the claim for damages against the railroad; that appellee at that time told Mr. Carter if he wanted to give him the money as a gift on his wages it would be all right, and that Mr. Carter said 'that was what he wanted to do; and that appellee signed the agreement with that understanding. Neither appellee nor Mr. Carter knew whether such payment would or would not interfere with appellee's suit against the railroad.

Section 13 of the Workmen's Compensation Act (Acts 1915, p. 395 [section 8020w, Burns Supp. 1921]), reads as follows:

"Whenever an injury or death, for which have been sustained under circumstances creatcompensation is payable under this act, shall ing in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee, or his dependents, in case of death, at his or their option, may claim compensation from the employer or proceed at law against such other person to reemployer and such other person at the same cover damages or may proceed against both the time, but he or they shall not collect from both; and, if compensation is awarded and accepted under this act, the employer, having paid compensation or having become liable therefor, may collect in his own name or in the name of the injured employee or, in the case of death, in the name of his dependents from the other person in whom legal liability for damages exists, the compensation paid or payable to the injured employee or his dependents."

In passing upon the question of the rights of an injured plaintiff as against an alleged negligent third person after such injured

said:

Mr. Carter testified that, when he gave appellee the check, he told appellee it released the lumber company from any other liabilperson had collected compensation under the ity, and if he expected to get any more mon- Workmen's Compensation Act, the Supreme ey he would have to go after the other par- Court, speaking by Judge Ewbank in Pittsties; that on October 25, 1920, he and appel-burgh, etc., R. Co. v. Parker, 191 Ind. 686, lee had a talk about the latter paying back 132 N. E. 372, 134 N. E. 890, 19 A. L. R. 751, the $20.76 which he had received, and that appellee said he had decided to return the money; that appellee then gave him a check for that amount and asked him to send it to the insurance company, which Mr. Carter promised to do; that appellee at that time said his lawyer had advised him to return the money; and that he was acting on the advice of his lawyer.

Appellee testified that he did not know anything about the Compensation Act when he received the $20.76 from the lumber company; that prior thereto he had talked with his lawyer about a suit against the railroad company and accepted the $20.76, with the understanding and belief that it would not interfere with that suit; that Mr. Carter told him it was a gift; that he later learned the insurance carrier had paid the doctor, after which he offered to pay the doctor and asked the doctor to return the money he had theretofore received from the insurance carrier; that the doctor did not accept the money from him; and that he has kept enough money in the bank to cover the check which he gave to the lumber company.

The evidence also shows that the check so given by appellee has never been cashed.

"The great weight of authority holds that under the provision, as recited, the injured employee shall not collect from both' the employer and a third person who caused his injury, and that an employer, 'having paid the compensation or having become liable therefor may collect * ** the indemnity paid,' an employee, who petitioned for the review of an award made in his favor, and procured it to be fixed at a definite amount, payable in weekly installments, and thereafter, for many months, the weekly payments as they became due, suraccepted from his employer and receipted for rendered whatever right he might have had to recover at common law from a third person, whose negligence caused his injuries, damages in excess of the compensation awarded him."

And, continuing, on page 696, the court said:

"The meaning of the statute seems too plain to admit of any possible construction other than that, when the injured workman goes so far as to 'collect' from the employer under the Workmen's Compensation Law, he is forbidden

also to recover an additional amount in an action at law against a third person whose negligence caused his injury.”

On petition for rehearing the court said: [entered into an agreement concerning the This "The Indiana statute expressly provides that right of appellee to compensation. the injured workman 'shall not collect from agreement was reduced to writing, at which both.' (Acts 1915, p. 392, § 13, supra.) Where time appellee received from his employer a the meaning of a statute is plain the courts check of the insurance carrier for the full must enforce it as it is written, and may not amount of the compensation agreed on. A resort to an artificial construction to conform few days later the agreement was filed with the law to what has been enacted in other and approved by the Industrial Board, and states in wholly different language." a short time thereafter the insurance carrier paid the doctor in full for the services ren

Whether appellee collected compensation from his employer, within the meaning of the compensation under the issues, was a question of fact. If he did, this cause must be reversed, otherwise affirmed.

In Mingo v. Rhode Island Co., 41 R. I. 423, 103 A. 956, the employee and employer entered into an agreement in accordance with the Workmen's Act, whereby the employer agreed to pay a certain sum for medical services and a named weekly compensation. This agreement was approved by the proper authority, and the amount so agreed on as compensation was paid, subject to an agreement between the employer and the employee that the latter should bring an action for damages against a third party whose negligence caused the injury, and that the employee should repay the employer all the money received by him under the agreement out of the damages recovered from the third party. It was there held that the employee was not precluded from suing the negligent third party. The court after a review of the English cases, in discussing a statute which provided that the employees shall not "receive both damages and compensation,"

dered appellee on account of the injury. At the time appellee signed the agreement and accepted the amount named therein, there was no agreement or understanding that the

employer or its insurance carrier was to be reimbursed by appellee out of any damages he might recover from appellant. Ordinarily, when an employer pays an injured employee the amount due under a compensathe Industrial Board, the employee cannot tion agreement which has been approved by prosecute an action against a third person for damages, but the employer may maintain an action against the wrongdoer to recover the amount he was required to pay the injured employee.

[1] We have no doubt but that an employer may make a gift to an injured employee of the amount which he might be entitled to as compensation under the act, and that the employee may accept such gift without in any wise affecting his right to maintain an action against some other person whose negligence caused the injury. Of course appellee and his employer had a right to enter into an agreement concerning compensation, and to have the same approved by the Industrial Board, without affecting appellee's "The employer is given the right of indem-right to sue for and collect damages from nity against the negligent third person, with the intention that the final payment for the damages suffered by the employee shall be

said:

a

made, not by the employer, but by the negligent third person who is responsible for the injury. The effect of the agreement in question is to accomplish this purpose of the statute and to aid the employer in securing the right of indemnity given to him by the statute. It is not the purpose of this statute to lessen or to change the liability of the negligent third person who is fully protected therein from double liability, and in our opinion it was not the intention of the Legislature to restrict the right of the employee to make and act upon such an agreement as the one in question, and we do not think that the mere approval by the court of the agreement, procured by the initiative of either employee or employer, should be construed as a bar to the employee's right of action against the person responsible for the injury."

The evidence in the instant case very clearly and without conflict shows that within two weeks after his injury appellee consulted a lawyer relative to his claim against appellant for damages, and that the lawyer within that time wrote a letter to appellant, making a claim for damages. About two

appellant.

In Kelly v. North British Ry. Co., 53 S. L. Rep. 53, a workman was injured through the negligence of the railway company. He received compensation from his employer under an arrangement in writing that the receipt of compensation should be without prejudice, and with the understanding that he intended to take action against the railway company, and if he recovered damages from the railway company he should repay whatever compensation had been paid him. The court following Wright v. Lindsay, 49 S. L. R. 210, decided in 1911, where a similar arrangement, partly in writing and partly oral, was held not to bar an action against the wrongdoer. It was held in each of these cases that the payments were made for the purpose of enabling the workman to tide over the time that must elapse before the action against the wrongdoer could be disposed of, and were not intended to be made by virtue of the Compensation Act.

In Aldin v. Stewart, 53 S. L. R. 49, where the workman accepted payment under circumstances showing that he was aware the payments were being made under the Work