The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-08-17
Judge Mcpherson Refuses t.
Make an Order for Autopsy.
HAS NO JURISDICTION
Suggests That 1t Can Be Grant
ed in Other Action.
Question One to Be Settled in
Jury Trial.

tual Life Insurance company 10 eXnuIne
the body of Lucius H. Perkins for the
purpose of holding an autopsy and to
discover whether death was due TO an
accident or to poison self administered
was denied by Judge Smith Mcpherson
In the United States circuit court TO-
day.
Judge Mcpherson holds that 1T is no.
properly before his court, that he has
not the jurisdiction and that 1t is not
case in equity but one to be determined
by jury trial.
Lucius H. Perkins of Lawrence,
prominent attorney, fell from the roof
Of his newly built residence in the sub
urbs of Lawrence on the evening of
June l 1907 The New York Mutual Life
Insurance company which had insured
his life for 800, 600, claim that they dis
covered later that he had purchased
morphine and had taken the poison
for the purpose Of suicide just prior to
mounting the roof of the house from
which he fell. The family claim that
the house was newly constructed and
while Perkins was examining work
newly completed, he made a mis-step
and was hurled to his death.
The attorneys for the insurance COM
pany made application to have the body
exhumed in order that the contents of
the stomach might be analysed for
traces of morphine
One of the attorneys for the insurance
company said with reference to the de-
cision handed down today: Il don't
know what step will be followed next
A conference of the attorneys for the
company will be held Immediately. 1
think there is no question but what
we will continue to fight for an
autopsy"
Sentimental considerations should not
act against examination says Judge Nc
Pherson.
Order of the Court.
The order of the court follows:
The application of complaint for an
order to exhume the body of deceased
Lucius Hiram Perkins and to allow an
analysis of parts of said body to be
made, and the defendants plea to the
jurisdiction and defendants demurrer
to the bill of complaint herein were
heretofore submitted and by the court
taken under Amusement.
And now at this time the court be-
ing fully advised, for the reasons
stated in an opinion this day filed by
the presiding Judge. 1t is ordered:
1. The application of complainant
for an order to exhume the body of
said Perkins, deceased, and to allow
an analysis of parts of said body to be
made, is denied, but this denial of said
application is without prejudice to
any future application in this court,
or any other in any action con-
corning the policy of insurance re-
ferred to in the bill of complaint here
in. To the foregoing both complain
ant and each and all of defendants ex-
cept.
2. And the plea to the Jurisdiction
filed by defendants herein is held to
be well taken and is sustained, to
which the complainant excerpts.
g. And the demurrer filed by de-
PENDANTS to the bill of complaint is
sustained, and complainant excerpts
4. And said bill of complaint is
dismissed and complainant will pay
the costs herein made to be taxed by
the clerk. and If not paid within sixty
days execution therefor will issue, to
which complainant excerpts.
Done in open court at Kansas City,
Kansas. August 18th, 1907.
SMITH MCPHERSON, Judge.
Not IN Equity Question.
With reference to the claim that
death was due to other than acct
should be exhumed Judge Mcpherson
says: This question is thus briefly
presented. because it was discussed at
the argument. and these tentative
views are expressed. without deciding
the question. It is not now decided,
because of this court in this case is
not to be decided for the reason that
It Is question of evidence to be de-
cided in an action at law on the
policy. and it is not a question of
equitable Jurisdiction. The cases cited
that a party cannot be compelled to
produce evidence until the trial. do
not have any application. If this
body is exhumed. it must be in ad-
vance of the trial so that the neces- |
sary time can be given to the analysis. |
Otherwise a jury will be kept waiting |
for weeks and the entire procedure a |
farce. But it is a question for the |
trial court in the law action, and |
there Is no reason to say that the |
present occupant of the bench will /
preside at the trial. Section 724 of |
the revised statutes of the United |
States Is practically a substitute for |
the remedy of discovery and all other |
remedies as to evidence formerly ex-
istins In equity only. That statute
avoids the necessity of going into
equity for evidence. And If the right
exists in any case to have an order to
exhume the body such right exists in |
an action at law fully as under a
bill in equity The opinion of the
court is that the complainant has a
plain, adequate and complete remedy
by way of defense in the action at law
within the meaning of section 723 of
the revised statutes which recites:
Suit in equity shall not be sustained
in either of the courts of the United |
States in any case where a plain, ade-
uuate and complete remedy may be
had at law
THAT being so the application for
an order in this case to exhume the
body will be denied. reserving the right
cation in the action at law to the then T
trial court without prejudice by. the
ruling herein.
Of equity belong the power of cancel |
ling instruments of writing obtained
hy fraud and that the rule established |
in the Riggs and Cable cases do not
apply to the case at bar"
Executors Must Recover.
The claims are based on the grounds