Muldoon v. Board of Appeals

Massachusetts Supreme Judicial Court

Muldoon v. Board of Appeals

221 N.E.2d 466, 351 Mass. 702

CourtMassachusetts Supreme Judicial Court

DecidedNovember 3, 1966

StatusPublished

Cited by6 cases

This text of 221 N.E.2d 466 (Muldoon v. Board of Appeals) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Muldoon v. Board of Appeals, 221 N.E.2d 466, 351 Mass. 702 (Mass. 1966).

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Opinion

The dismissal of this bill of complaint brought by an aggrieved person as an appeal from the granting of a variance was in accordance with G. L. c. 40A, § 21 (as amended by St. 1960, c. 365). The bill, filed October 8, 1964, failed to name the original applicant and the statutory affidavit, seasonably filed, failed to show service upon him. The statute provides for service by delivery or certified mail “to all respondents” and for the filing within twenty-one days after the entry of the bill of “an affidavit that such notice has been given.” It also provides that if “no such affidavit is filed within such time the bill shall be dismissed.” The motion to intervene filed by the original applicant on October 13, 1965, recited that only the board had been named a defendant and asked leave to intervene to oppose the appeal, assigning “as reasons . . . the facts set forth.” In making this motion, more than a year after the bill was filed, the applicant, we think, intended only a special appearance. In any event, in the circumstances, he did not waive the right to ask for a dismissal under the statute.

Final decree affirmed.

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The dismissal of this bill of complaint brought by an aggrieved person as an appeal from the granting of a variance was in accordance with G. L. c. 40A, § 21 (as amended by St. 1960, c. 365). The bill, filed October 8, 1964, failed to name the original applicant and the statutory affidavit, seasonably filed, failed to show service upon him. The statute provides for service by delivery or certified mail “to all respondents” and for the filing within twenty-one days after the entry of the bill of “an affidavit that such notice has been given.” It also provides that if “no such affidavit is filed within such time the bill shall be dismissed.” The motion to intervene filed by the original applicant on October 13, 1965, recited that only the board had been named a defendant and asked leave to intervene to oppose the appeal, assigning “as reasons . . . the facts set forth.” In making this motion, more than a year after the bill was filed, the applicant, we think, intended only a special appearance. In any event, in the circumstances, he did not waive the right to ask for a dismissal under the statute.

Final decree affirmed.

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Bluebook (online)

221 N.E.2d 466, 351 Mass. 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muldoon-v-board-of-appeals-mass-1966.

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