G.R. No. 138584 ; October 2, 2000
MARIA VICTORIA CANO-GUTIERREZ, petitioner, vs. HERMINIO A. GUTIERREZ, respondent.

FACTS

Petitioner Maria Victoria Cano-Gutierrez and respondent Herminio A. Gutierrez were married in 1989. Petitioner alleges she left their conjugal home in Mandaluyong City in January 1994 due to maltreatment, relocating to other addresses in Mandaluyong and later Quezon City. In early 1997, she discovered respondent had remarried after obtaining a declaration of nullity of their marriage from the Regional Trial Court of Pasig in 1996. Petitioner claims she never received the summons or a copy of the annulment petition, as these were served at the old conjugal home in August 1995 and received by a certain Susan B. Gutierrez, whom petitioner alleges was not a resident there and was designated by respondent.
Respondent filed the petition for annulment, alleging he discovered petitioner in an act of infidelity, which caused him psychological impotence. The trial court granted the petition. Petitioner, asserting she was never properly served with summons and thus the court never acquired jurisdiction over her, filed a petition for certiorari with the Court of Appeals after the decision became final. The CA dismissed her petition, ruling certiorari was an improper substitute for a lost appeal and that substituted service of summons was valid.

ISSUE

Whether the Court of Appeals erred in dismissing the petition for certiorari and in upholding the validity of the substituted service of summons.

RULING

The Supreme Court denied the petition, affirming the Court of Appeals. On the propriety of the remedy, the Court held that a petition for certiorari under Rule 65 cannot substitute for a lost appeal. Records showed petitioner received a copy of the trial court’s decision on May 10, 1996, but failed to file a timely appeal within the 15-day reglementary period. The loss of the right to appeal was due to her own neglect, and the mutual exclusivity of appeal and certiorari bars the latter as a remedy.
On the validity of service of summons, the Court found that substituted service was properly effected. The officer’s return and affidavit of the process server indicated that after several attempts at personal service at petitioner’s “dwelling house or residence,” the summons was eventually received by Susan B. Gutierrez, a person of suitable age and discretion residing therein. The trial court had previously found, based on respondent’s evidence, that petitioner had not actually abandoned the conjugal home. Therefore, service at that address complied with Rule 14, Section 7 of the Rules of Court. Since the trial court acquired jurisdiction and did not commit grave abuse of discretion, and petitioner failed to perfect an appeal, the assailed decision stands.