Board of Directors of Worcester Free Public Library v. Attorney General

• Decision Date: 14 July 1980
• Citation: 10 Mass.App.Ct. 833,406 N.E.2d 1051
• Parties: BOARD OF DIRECTORS OF the WORCESTER FREE PUBLIC LIBRARY v. ATTORNEY GENERAL (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 1051

406 N.E.2d 1051

10 Mass.App.Ct. 833

BOARD OF DIRECTORS OF the WORCESTER FREE PUBLIC LIBRARY v. ATTORNEY GENERAL (and a companion case ¹).

Appeals Court of Massachusetts, Worcester.

Argued June 23, 1980.

Decided July 14, 1980.

John O. Mirick, Boston, for Lambi N. Adams and others.

Bennett S. Gordon, Asst. City Sol., for Bd. of Directors of Worcester Free Public Library and another.

Carol G. Fubini, Asst. Atty. Gen., for the Attorney General.

Before GOODMAN, BROWN and NOLAN, JJ.

RESCRIPT.

1. The principal case. On the record before us, the Probate Court was within its discretion in refusing to permit the appellants to intervene pursuant to Mass.R.Civ.P. 24(b), 365 Mass. 770 (1974) (permissive intervention), for the purpose of relitigating the merits of the case more than eleven months after final judgment had been entered on December 28, 1978. Matter of Carson, --- Mass.App. ---, --- - ---, ^a 382 N.E.2d 1116 (1978), S.C. --- Mass. ---, ^b 389 N.E.2d 90 (1979). Mass.R.Civ.P. 24(b) (requiring "timely application"). See Black v. Central Motor Lines, Inc., 500 F.2d 407, 408 (4th Cir. 1974); Nevilles v. Equal Employment Opportunity Commn., 511 F.2d 303, 305-306 (8th Cir. 1975); Chase Manhattan Bank v. Corporacion Hotelera de Puerto Rico, 516 F.2d 1047, 1049-1050 (1st Cir. 1975). See generally, 7A Wright & Miller, Federal Practice & Procedure §§ 1913, 1916 (1972).

2. The companion case. This taxpayers' action brought on November 28, 1979, solely pursuant to G.L. c. 214, § 3(10), as appearing in St. 1973, c. 1114, § 62, was properly dismissed. "(L)eave of court," as required by § 3(10), was not obtained in the Probate Court or in the Supreme Judicial Court, which had transferred (G.L. c. 211, § 4A) the action (including a "Motion for Leave" which was never allowed) to the Probate Court for disposition.

Judgments affirmed.

1 Lambi N. Adams & others vs. City of Worcester & others.

a. Mass.App.Ct.Adv.Sh. (1978) 1080, 1086-1087.

b. Mass.Adv.Sh. (1979) 1194.