Elbar Realty, Inc. v. Shapiro

• Decision Date: 15 March 1961
• Citation: 342 Mass. 276,173 N.E.2d 254
• Parties: ELBAR REALTY, INC. v. Nathaniel SHAPIRO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 254

173 N.E.2d 254

342 Mass. 276

ELBAR REALTY, INC. v. Nathaniel SHAPIRO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 9, 1961.

Decided March 15, 1961.

Claude B. Cross, Edward C. Park, and Charles C. Worth, Boston, for plaintiff.

David Lasker, Boston, for defendant.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

This action to recover for the conversion of a United States certificate of indebtedness relates to the same transactions discussed in Elbar Realty, Inc. v. City Bank & Trust Co., Mass., 173 N.E.2d 256, and was tried with that case. Shapiro originally appeared pro se. Subsequently, an attorney appeared for him but withdrew his appearance on October 2, 1959.

On October 9, Shapiro, 'Who was incarcerated in the Norfolk Prison Colony for receiving stolen goods, filed a petition for a writ of habeas corpus [ad testificandum] to be brought into court October 13, 1959.' This petition was dismissed the samy day because the case against Shapiro had been 'continued * * * for trial to November 2, 1959, and * * * [Shapiro was] given * * * until * * * October 30, 1959, to obtain counsel * * * before any further continuances * * * [would be] granted.' There was, of course, after the continuance no occasion for any court appearance by Shapiro on October 13.

The case was reached for trial on November 9, 1959. Shapiro 'was not present at the opening of the trial or represented by counsel.' A jury was then empanelled, and three witnesses testified about the purchase by Elbar of the certificate of indebtedness, about how it was kept in Elbar's safe, and about the theft of the certificate. On November 10, Shapiro was brought into court on a writ of habeas corpus obtained by Elbar. Shapiro, before he took the stand, asked for a continuance. This was denied. He then declined to testify because he had not been afforded 'opportunity to choose the jurors or deny the sitting of * * * jurors as a defendant.' A motion was made to hold him in contempt, and Shapiro proceeded to testify after saving an exception to the procedure adopted. Thereafter he was present at the trial, but in answer to inquiries by the judge 'stated that he would not put on * * * evidence, * * * examine witnesses, or address the jury.' He then renewed his objections and exceptions. A verdict against Shapiro was returned.

There is no merit to Shapiro's exceptions. The case had been begun by writ dated May 18, 1959, and had been entered on July 6. Thus Shapiro, by November 9, had known for at least four months that it was pending. He was notified on October 9 of the continuance of the case until November 2 and was then told that he must obtain counsel by October 30. The strong implication of the notice to him is that the judge on October 30 would then, but not until then, be willing to consider a further continuance if cause for one appeared. The bill of exceptions does not show that, after October 9, Shapiro renewed his application for a writ of habeas corpus ad testificandum. He was brought into court on November 10 to testify by Elbar, not upon his own petition. He made no offer to prove that he had been unable to obtain counsel, or that he even had tried to do so, or that prison authorities had denied him opportunity to file, or obstructed his filing, a petition for a new writ of habeas corpus. His prior application sufficiently shows that he knew the correct steps to take with respect to such a petition.

It was Shapiro's duty to be ready for trial on and after November 2, when reached on the list, unless he seasonably and successfully took steps to obtain a continuance. See Germain...