Opinion
July 14, 1980.
John O. Mirick for Lambi N. Adams others.
Bennett S. Gordon, Assistant City Solicitor, for the Board of Directors of the Worcester Free Public Library another.
Carol G. Fubini, Assistant Attorney General, for the Attorney General.
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, 6 Mass. App. Ct. 665, 669-670 (1978), S.C. sub nom. Adoption of a Minor, 378 Mass. 793 (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 and 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.