In December, 1917, this action was instituted in the Court of First Instance of  Tayabas in the name  of Juan Marin as plaintiff,  at the instance of his attorney-in-fact, Jose Palacios Lahoz,  for  the  purpose  of recovering  from the Manila Railroad Co. the value of certain land  now occupied by it  in the municipality of Candelaria, in  the Province of Tayabas, and used by it for railroad purposes,  as  well as to recover an adjacent strip of land alleged not to be used by the railroad company for its  corporate  purposes, together with damages and  costs.  On  June 18,  1920, the court,  in open session, granted to Lahoz leave to intervene as a plaintiff in the cause, upon his representation that he had acquired from  Marin the interest of the latter in the subject matter in litigation.   No amended complaint  was filed pursuant to the authority thus granted, and the record continued to stand upon the leave thus granted by the court in these words:  "The plaintiff is permitted to amend his complaint in the sense of including Sr. Jose Palacios Lahoz as plaintiff."

It appears  that the railroad company had taken possession of the property which is the subject matter of  this action in  virtue of  a judgment  of expropriation which it had instituted  in 1907 against Hermenegildo Nadres, the then  alleged  owner of the property.  It was  therefore thought desirable by the railroad company to file a crosscomplaint against Nadres for the purpose of  warranty in case of eviction, and Nadres was so included at the request of the defendant.  Later Nadres  died and the  litigation instituted by Marin in the case now before us suffered extended delay  from the death of said party.  Finally, upon the initiative of the plaintiff,  one Juan R. Brano was procured to be named as  administrator of Nadres, and the proceedings pursued their way towards final resolution. After the proof in  chief had  all  been taken, and  the cause was approaching final  submission,  the  attorney for the defendant made a motion, on  May 22, 1930, to dismiss the case for uncertainty as to the personality of  the plaintiff and an alleged  inconsistency in the allegations of the complaint and subsequent proceedings with respect to the personality  of the  plaintiff.  This motion to dismiss  was granted in an order of the  presiding judge  on May 29, 1930,  and after motion for reconsideration had been interposed, the court amplified said order on  July  2,  1930, denying the motion for reconsideration.

We  are  of the opinion that the motion to  dismiss  was improperly sustained, and the cause must be returned to the court of origin  for a hearing on  the merits, with leave to the plaintiff to file an amended complaint and to submit proof in rebuttal, if desired.

We observe that the  only effect of the dismissal of the case would  be to impose  upon the plaintiff the task of filing a new complaint, with the probable result that the whole business would have to be gone over again.

It cannot be fairly said upon this record that the plaintiff is to blame for the many delays that the case has suffered, and especially with reference  to  the  appointment of an administrator of Hermenegildo Nadres,  as this individual was made defendant at the instance of the defendant, and it was in the first place the duty  of the defendant to procure said representation to be brought in if necessary for its protection.

We note that it makes no difference whether Lahoz was intended by the court to be substituted for the original plaintiff Marin or whether Lahoz was intended to  be brought in merely as an additional plaintiff, since the proper thing to do in the end, would be to award judgment in favor of the real party in interest as might appear from the proof.

It was of  course  desirable that an  amended complaint should have  been filed for the addition of Lahoz as a plaintiff, but the  parties to the case  apparently assumed that he had acquired the status of a party by virtue of  the  leave granted by the court for him to come in "as plaintiff, and if the defendant had thought it desirable to raise the question over the alleged  uncertainty as to the  personality of the plaintiff, it would have done well to have raised  the question sooner, without going to proof  on the merits.  There is good reason for  holding that the  defendant  had waived the formal presentation of an amended  complaint, and the court at least erred in not conceding to the plaintiff the right to file an amended complaint when attention was called to the state of  the record.

The order appealed from is set aside and the cause remanded to the court of origin for further proceedings.  So ordered, without costs.

Avanceña, C. J., Johnson, Malcolm, Villamor, Romualdez, Villa-Real, and Imperial, JJ., concur.

OSTRAND, J.: I dissent.