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 Sections 1913, 1916 (1972).
2. The companion case. This taxpayers' action brought on November 28, 1979, solely pursuant to G. L. c. 214, Section 3(10), as appearing in St. 1973, c. 1114, Section 62, was properly dismissed. "[L]eave of court," as required by Section 3(10), was not obtained in the Probate Court or in the Supreme Judicial Court, which had transferred (G. L. c. 211, Section 4A) the action (including a "Motion for Leave" which was never allowed) to the Probate Court for disposition.
[Note 1] Lambi N. Adams & others vs. City of Worcester & others.
Faithful to the order of the Supreme Judicial Court ( 380 Mass. 941 ), we have reconsidered our earlier holding in this case ( 9 Mass. App. Ct. 897 ) in the light of the court's decision in Murphy v. Murphy, 380 Mass. 454 (1980). The defendant's motion under Mass.R.Dom.Rel.P. 12(b)(1) (1975) raised the question whether the minor child of the parties was an "inhabitant" or "resident" of the Commonwealth within the meaning of G. L. c. 208, Section 29, as appearing in St. 1975, c. 400, Section 30, so that the court would have jurisdiction to make an order providing for the "care, custody, education and maintenance" of the child under Section 29.
The plaintiff had the burden of proving the jurisdictional facts. Thomson v. Gaskill, 315 U.S. 442, 446 (1942). Nichols Associates, v. Starr, 4 Mass. App. Ct. 91 , 93-94 (1976). The allegations of the complaint, which
was not signed under the penalties of perjury or sworn to before an officer authorized to take oaths (see G. L. c. 268, Section 1A; O'Brien, Russell & Co. v. LeMay, 370 Mass. 243 , 245 ), did not supply the missing proof. Accordingly, we did not and do not reach the question considered in the Murphy case.