EN BANC
[G.R. No. L-20341. May 14, 1966.]
DR. SIMEON S. CLARIDADES, Plaintiff-Appellant, v. VICENTE C. MERCADER and PERFECTO FERNANDEZ, defendants-appellees, GUILLERMO REYES, intervenor-appellant, ARMANDO H. ASUNCION, ALFREDO J. ZULUETA and YAP LEDING, intervenors-appellees.
Francisco S. Dizon, for Plaintiff-Appellant.
Gonzales, Sr. & Munsayac for Defendants-Appellees.
Jose F. Tiburcio for intervenors-appellees Zulueta & Leding.
Toribio T. Bella for intervenor-appellee Asuncion.
SYLLABUS
1. VENUE; ACTION FOR LIQUIDATION OF PARTNERSHIP; EFFECT ON NATURE OF ACTION BY SALE OF REAL PROPERTY. — An action for the liquidation of a partnership is a personal one which may be brought in the place of residence of either the plaintiff or the defendant. The fact that plaintiff prays for the sale of the assets of the partnership, including a fishpond located in a province other than that where the action was brought, does not change the nature or character of the action, such sale being merely a necessary incident of the liquidation of the partnership, which should precede and/or is part of its proper dissolution.
2. ID.; FAILURE OF DEFENDANT TO OBJECT TO VENUE OF AN ACTION; WAIVER. — Failure of defendants to object to the venue constitutes a waiver of their rights, if any, to question it. (Rule 4, Section 4, Rules of Court; Manila Railroad v. Attorney General, 20 Phil., 523, 537.)
3. ID.; PROPERLY LAID VENUE NOT AFFECTED BY ISSUES RAISED BY INTERVENOR. — A venue which was properly laid when the complaint was filed cannot, subsequently, become improper in consequence of issues raised later by any of the intervenors.
4. ID.; ID.; EFFECT ON THE AUTHORITY OF COURT. — Where venue has been properly laid, the court having legally acquired authority to hear and decide the case, cannot be divested of that authority by intervenors.
5. INTERVENTION; EFFECT ON THE NATURE OF ACTION. — An intervention cannot alter the nature of the action and the issues joined by the original parties thereto. (Castro v. David, L-8508, Nov. 29, 1956.)
6. ID.; VENUE PROPERLY LAID; ERRONEOUS DISMISSAL; CASE REMANDED FOR FURTHER PROCEEDINGS. — Where venue has been properly laid and the court has erroneously dismissed the case, the order of dismissal should be set aside and the case remanded to the lower court for further proceedings.
2. ID.; FAILURE OF DEFENDANT TO OBJECT TO VENUE OF AN ACTION; WAIVER. — Failure of defendants to object to the venue constitutes a waiver of their rights, if any, to question it. (Rule 4, Section 4, Rules of Court; Manila Railroad v. Attorney General, 20 Phil., 523, 537.)
3. ID.; PROPERLY LAID VENUE NOT AFFECTED BY ISSUES RAISED BY INTERVENOR. — A venue which was properly laid when the complaint was filed cannot, subsequently, become improper in consequence of issues raised later by any of the intervenors.
4. ID.; ID.; EFFECT ON THE AUTHORITY OF COURT. — Where venue has been properly laid, the court having legally acquired authority to hear and decide the case, cannot be divested of that authority by intervenors.
5. INTERVENTION; EFFECT ON THE NATURE OF ACTION. — An intervention cannot alter the nature of the action and the issues joined by the original parties thereto. (Castro v. David, L-8508, Nov. 29, 1956.)
6. ID.; VENUE PROPERLY LAID; ERRONEOUS DISMISSAL; CASE REMANDED FOR FURTHER PROCEEDINGS. — Where venue has been properly laid and the court has erroneously dismissed the case, the order of dismissal should be set aside and the case remanded to the lower court for further proceedings.
D E C I S I O N
CONCEPCION, J.:
Appeal from an order of dismissal of the Court of First Instance of Bulacan based upon the ground that venue had been improperly laid.
Petitioner, Dr. Simeon S. Claridades brought this action against Vicente C. Mercader and Perfecto Fernandez for the dissolution of partnership allegedly existing between them and an accounting of the operation of the partnership, particularly a fishpond located in Sta. Cruz, Marinduque, which was the main asset of the partnership, from September 1954, as well as to recover moral and exemplary damages, in addition to attorney’s fees and costs.
In their answer the defendants admitted the existence of the partnership and alleged that its operation had been so far unproductive. By way of special defense, they alleged, also, that there is an impending auction sale of said fishpond due to delinquency in the payment of taxes, owing to lack of funds and plaintiff’s failure to contribute what is due from him. Defendants, likewise, set up a counter-claim for damages, by reason of the institution of this action, and for attorney’s fees and costs.
Subsequently, Guillermo Reyes was allowed to intervene for the purpose of recovering a sum of money allegedly due him for services rendered as foreman of said fishpond, plus damages. Later, one Armando Asuncion succeeded in intervening as the alleged assignee of the interest of defendant Mercader in said partnership and fishpond. Thereafter, on plaintiff’s motion, the lower court appointed a receiver of the fishpond. Upon the other hand, Alfredo Zulueta and his wife Yap Leding sought permission to intervene, still later, alleging that they are the owners of said fishpond, having bought one-half (1 1/2) of it from Benito Regencia, who, in turn, had acquired it from Asuncion, who had purchased the fishpond from defendant Mercader, and the other half having been assigned to him directly by Asuncion.
Despite plaintiff’s opposition thereto, said permission was granted in an order dated February 8, 1962 which, likewise gave the Zuluetas ten (10) days within which to file such pleading as they may deem necessary for the protection of their rights. Soon thereafter, or on February 12, 1962, the Zuluetas filed a motion to dismiss upon the ground that the complaint states no cause of action; that venue has been improperly laid; and that plaintiff’s complaint is moot and academic. Acting upon the motion, March 2, 1962, the lower court granted the same upon the ground of improper venue. A reconsideration of this order having been denied, plaintiff and Intervenor Reyes have interposed the present appeal.
The only question for determination before us is whether or not this action should have been instituted, not in the Court of First Instance of Bulacan, but in that of Marinduque, where the aforementioned fishpond is located. The lower court answered this question in the affirmative, upon the ground that the subject matter of this case is the possession of said fishpond, because plaintiff prays in the complaint that the assets of the partnership, including said fishpond, be sold, that the proceeds of the sale be applied to the payment of the debts of the partnership, and that the residue be distributed equally among the partners; that, as intervenor, Asuncion claims to have an interest in said fishpond; that the same has been placed under a receivership; and that the Zuluetas claim to be the exclusive owners of the fishpond aforementioned.
The conclusion drawn from these premises is erroneous. Plaintiff’s complaint merely seeks the liquidation of his partnership with defendants Fernandez and Mercader. This is obviously a personal action, which may be brought in the place of residence of either the plaintiff or the defendants. Since plaintiff is a resident of Bulacan, he had the right to bring the action in the Court of First Instance of that province. 1 What is more, although defendants Fernandez and Mercader reside in Marinduque, they did not object to the venue. In other words, they waived whatever rights they had, if any, to question it. 2
The fact that plaintiff prays for the sale of the assets of the partnership, including the fishpond in question, did not change the nature or character of action, such sale being merely a necessary incident of the liquidation of the partnership, which should precede and/or is part of its process of dissolution. Neither plaintiff’s complaint nor the answer filed by defendants Fernandez and Mercader questioned the title to said property or the possession thereof.
Again, the situation was not changed materially by the intervention either of Asuncion or of the Zuluetas, for, as alleged successors to the interest of Mercader in the fishpond, they, at best, stepped into his shoes. Again, the nature of an action is determined by the allegation of the complaint. 3 At any rate, since the venue was properly laid when the complaint was filed, said venue cannot, subsequently, become improper in consequence of issues later raised by any of the intervenors. The court having legally acquired authority to hear and decide the case, it cannot be divested of that authority by said intervenors. "An intervention cannot alter the nature of the action and the issue joined by the original parties thereto." 4
Wherefore, the order appealed from should be as it is hereby set aside and the case remanded to the lower court for further proceedings, with costs against intervenors-appellees, Armando H. Asuncion and Mr. and Mrs. Alfredo J. Zulueta. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J. P., Zaldivar and Sanchez, JJ., concur.
Petitioner, Dr. Simeon S. Claridades brought this action against Vicente C. Mercader and Perfecto Fernandez for the dissolution of partnership allegedly existing between them and an accounting of the operation of the partnership, particularly a fishpond located in Sta. Cruz, Marinduque, which was the main asset of the partnership, from September 1954, as well as to recover moral and exemplary damages, in addition to attorney’s fees and costs.
In their answer the defendants admitted the existence of the partnership and alleged that its operation had been so far unproductive. By way of special defense, they alleged, also, that there is an impending auction sale of said fishpond due to delinquency in the payment of taxes, owing to lack of funds and plaintiff’s failure to contribute what is due from him. Defendants, likewise, set up a counter-claim for damages, by reason of the institution of this action, and for attorney’s fees and costs.
Subsequently, Guillermo Reyes was allowed to intervene for the purpose of recovering a sum of money allegedly due him for services rendered as foreman of said fishpond, plus damages. Later, one Armando Asuncion succeeded in intervening as the alleged assignee of the interest of defendant Mercader in said partnership and fishpond. Thereafter, on plaintiff’s motion, the lower court appointed a receiver of the fishpond. Upon the other hand, Alfredo Zulueta and his wife Yap Leding sought permission to intervene, still later, alleging that they are the owners of said fishpond, having bought one-half (1 1/2) of it from Benito Regencia, who, in turn, had acquired it from Asuncion, who had purchased the fishpond from defendant Mercader, and the other half having been assigned to him directly by Asuncion.
Despite plaintiff’s opposition thereto, said permission was granted in an order dated February 8, 1962 which, likewise gave the Zuluetas ten (10) days within which to file such pleading as they may deem necessary for the protection of their rights. Soon thereafter, or on February 12, 1962, the Zuluetas filed a motion to dismiss upon the ground that the complaint states no cause of action; that venue has been improperly laid; and that plaintiff’s complaint is moot and academic. Acting upon the motion, March 2, 1962, the lower court granted the same upon the ground of improper venue. A reconsideration of this order having been denied, plaintiff and Intervenor Reyes have interposed the present appeal.
The only question for determination before us is whether or not this action should have been instituted, not in the Court of First Instance of Bulacan, but in that of Marinduque, where the aforementioned fishpond is located. The lower court answered this question in the affirmative, upon the ground that the subject matter of this case is the possession of said fishpond, because plaintiff prays in the complaint that the assets of the partnership, including said fishpond, be sold, that the proceeds of the sale be applied to the payment of the debts of the partnership, and that the residue be distributed equally among the partners; that, as intervenor, Asuncion claims to have an interest in said fishpond; that the same has been placed under a receivership; and that the Zuluetas claim to be the exclusive owners of the fishpond aforementioned.
The conclusion drawn from these premises is erroneous. Plaintiff’s complaint merely seeks the liquidation of his partnership with defendants Fernandez and Mercader. This is obviously a personal action, which may be brought in the place of residence of either the plaintiff or the defendants. Since plaintiff is a resident of Bulacan, he had the right to bring the action in the Court of First Instance of that province. 1 What is more, although defendants Fernandez and Mercader reside in Marinduque, they did not object to the venue. In other words, they waived whatever rights they had, if any, to question it. 2
The fact that plaintiff prays for the sale of the assets of the partnership, including the fishpond in question, did not change the nature or character of action, such sale being merely a necessary incident of the liquidation of the partnership, which should precede and/or is part of its process of dissolution. Neither plaintiff’s complaint nor the answer filed by defendants Fernandez and Mercader questioned the title to said property or the possession thereof.
Again, the situation was not changed materially by the intervention either of Asuncion or of the Zuluetas, for, as alleged successors to the interest of Mercader in the fishpond, they, at best, stepped into his shoes. Again, the nature of an action is determined by the allegation of the complaint. 3 At any rate, since the venue was properly laid when the complaint was filed, said venue cannot, subsequently, become improper in consequence of issues later raised by any of the intervenors. The court having legally acquired authority to hear and decide the case, it cannot be divested of that authority by said intervenors. "An intervention cannot alter the nature of the action and the issue joined by the original parties thereto." 4
Wherefore, the order appealed from should be as it is hereby set aside and the case remanded to the lower court for further proceedings, with costs against intervenors-appellees, Armando H. Asuncion and Mr. and Mrs. Alfredo J. Zulueta. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J. P., Zaldivar and Sanchez, JJ., concur.
Endnotes:
1. Rule 4, Section 2 (c), Rules of Court.
2. Rule 4, Section 4, Rules of Court; Manila Railroad v. Attorney General, 20 Phil., 523, 537.
3. Rene v. Claro, 91 Phil., 251.
4. Castro v. David, 100 Phil., 454.
