I am compelled to dissent from the opinion of the majority in this case upon two grounds:
First: This is an application for a writ of supervisory control — a special proceeding which requires in advance special reasons for interference of this court in the proceedings of a district court.
The facts appearing in the proceedings presented to this court show conclusively that the district court did not have before it a sufficient proof of service of summons and those conditions continued even until and after the argument before this court; therefore, the district court was absolutely right in refusing to grant the divorce, and upon the record before us we could not do otherwise than dismiss the proceeding. If supplementary proof was admissible at all, a continuance of the hearing should have been requested and the amended facts presented at the continued hearing. If the amendment were for the purpose of sustaining a judgment of the district court, the proceedings might be warranted, but it would be otherwise where the purpose is to modify the judgment of that court.
The subsequent amendment to the proof of service was never presented to the district court and never presented to this court except that it was filed since the argument. It certainly would not be fair to the district court to amend the record after it had passed the judgment, and even after the situation had been presented to this court. I therefore hold that the supervisory control proceeding is not justified in this case, and this *Page 104 court has no jurisdiction under our supervisory control authority.
The fact that the memorandum of the district court is held in the majority opinion not to constitute a completed dismissal of the case, that is, not to constitute an appealable order (if such was the effect of the order), was a matter easily corrected so that an appeal could have been taken in the regular way. This court should not exercise its supervisory authority unless the necessity appears — unless all other remedies have been exhausted.
Second: The parties to this action were both citizens of Canada. The plaintiff was an employee of Canada, and the only evidence of residence is that he slept in the United States, as a matter of convenience. He did not claim to ever have been a resident of the United States or that he ever intended to become such, and his claim of residence rests solely upon the flimsy claim that a man who had once established his residence in the United States might claim to have continued that residence, even though employed in Canada; but the inverse of that situation, namely, that he acquired a residence by merely spending his nights in Montana, is quite a different situation.
It was suggested in the argument that Congressmen spending most of their time in the city of Washington with their families justly continued their residence in Montana. But, as said before, the continuance of a residence is very different from theestablishment of a residence.
Residence is largely a matter of intent. There is absolutely nothing here to warrant the conclusion that this plaintiff ever intended to establish a residence in Montana. The mere convenience of sleeping in Montana does not evince any intent to continue that alleged residence in the United States at any time after he ceased his employment with the Canadian government.
As said before, there is a total lack of intent to establish residence in Montana. Such being the fact, and the residence in Montana being a judicial requirement, the district court was justified in refusing to consider the case for lack of jurisdiction, namely residence of the plaintiff. *Page 105