123 Phil. 860
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 Sept ember 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 appoint ed a receiver of the fishpond. Upon the other hand, Alfredo Zulueta and his wife Yap Leding sought permis sion to intervene, still later, alleging that they are the owners of said fishpond, having bought one-half 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 Feb ruary, 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 reconsider ation of this order having been denied, plaintiff and Intevernor Reyes have interposed the present appeal.
The only question for determination before us is whe ther 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 plain tiff prays in the complaint that the assets of the partner ship, 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 me exclusive owners of the fishpond afore mentioned.
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 de fendants 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 Mer cader 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 pro perly 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 ag it is hereby set aside and the case remanded to the lower court for further proceedings, with costs against inter venors 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, Regain, Makalintal, Bengzon, J. P., Zaldivar and Sanchez, JJ., concur.
Order set aside, case remanded for further proceedings.
2 Rule 4, Section 4, Rules of Court; Manila Railroad vs. Attorney General, 20 Phil., 523, 537.