That, as the defendant conceded at oral argument, there was sufficient evidence for submission to the jury at the close of the defendant's case, in this automobile tort action, vitiates his motion for a directed verdict made at the close of the plaintiffs' case on the ground that the evidence was then insufficient. "[I]f a party introduces evidence after making an unsuccessful motion for a directed verdict at the close of his opponent's case, this constitutes a waiver of the objection to the sufficiency of the evidence." Martin v. Hall, 369 Mass. 882 , 884 (1976).
On the evidence which the probate judge found credible he was warranted, and certainly not plainly wrong, in approving and allowing as the last will and testament of the decedent, a tissue copy dated September 10, 1969, which she and three witnesses had signed, at the time the original was executed. The tissue copy had been retained by the decedent's attorney, who had drawn the original will and had attended its execution. The original had been given to the decedent and could not be found after her death. The probate judge (who made a report of material facts) disbelieved the testimony, which the opponents of the probate of the copy gave, that the decedent in 1971 had destroyed the original with the intent to revoke it. He believed the testimony of the proponent, the decedent's daughter, Mrs. Ordile. From her testimony the inference was warranted that the decedent had not destroyed her will. The credibility of the witnesses was for the judge. "The Probate Court has full authority in proper cases to allow the proof of a lost will by any competent evidence of its contents." Gannon v. MacDonald, 361 Mass. 851 (1972).
On October 11, 1974, the plaintiff appealed to the Superior Court from a decision of the zoning board of appeals (board) granting a variance to the defendant Savino N. Mele (Savino). On October 29, 1974, the plaintiff's counsel filed an affidavit of compliance with the clerk of the Superior Court pursuant to G. L. c. 40A, Section 21, as amended by St. 1973, c. 1114, Section 4. His affidavit stated that he had given written notice of the appeal, accompanied by a copy of the complaint, by certified mail return receipt requested to Savino and to the other defendants, members of the board. The plaintiff's counsel received
return receipts from seven of the eight defendants, and he sent a second copy of the notice by ordinary mail to the remaining defendant. The defendants moved to dismiss the appeal alleging that they had not been served with process within fourteen days of the filing of the complaint as then required by Section 21. [Note 1] The plaintiff has appealed from the judge's allowance of the defendants' motions to dismiss. "Whatever the law may have been at the time the judge rendered his decision (see Pierce v. Board of Appeals of Carver, 3 Mass. App. Ct. 352 ), it is now clear that the proceedings should not have been dismissed without inquiry as to whether any of the defendants might have been prejudiced in some way by the irregular manner of notification." City Council of Waltham v. Board of Appeals of Waltham, ante, 773, 774 (1977), citing Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 807-812 (1976). In City Council of Waltham, supra, and in Pierce, 369 Mass. 804 , 807-812 (1976), the complaints were ordered reinstated on appeal from their dismissals in the Superior Court. But in those cases, contrary to that now before us, it was undisputed that the defendants had received actual notice of the entry of the complaints in the Superior Court. In the instant case the judgment is reversed and the case is remanded to the Superior Court to determine whether the defendants received notice and, if so, whether they were prejudiced by the manner of notification. If it is found upon remand that notice was received and that the defendants were not so prejudiced, the complaint is to be reinstated.
[Note 1] General Laws c. 40A was thereafter further amended to permit service by certified mail G. L. c. 40A, Section 17, as appearing in St. 1975, c. 808, Section 3.