(dissenting)- — It appears to me there are just three questions necessary to be considered: (1) Was the father’s consent required? (2) Is the case triable de novo on appeal? And (3) Is the judgment of the trial court supported by substantial evidence ?
I would answer (1) and (2) in the negative and would say “yes” to (3).
I. Section 600.3, Iowa Code 1950 and I. C. A., provides: “The consent of both parents shall be given to such adoption * * * unless [they] are not married to each other * # *. If not married to each other, the parent having the care and providing for the wants of the child may give consent.”
Under this plain language the consent of the father here was unnecessary unless he both cared for, and provided for the wants of, the child. This or substantially equivalent language has been in the statute since 1858. See section 2601, Revision of 1860. We have construed it as meaning that the consent of both is necessary unless one parent is providing for the child’s wants “to the exclusion of the other.” Rubendall v. Bisterfelt, 227 Iowa 1388, 1390, 291 N.W. 401, 402.
Clearly the situation here does not bring resistor (the father) within the scope of even that liberal interpretation. The “care and custody” was -expressly awarded to the mother by the divorce decree. True, the father was to pay $60 per month for the “support, maintenance and education of the children” but that obligation was to terminate upon remarriage of the mother; and the payments had legally and actually terminated long before the adoption proceeding was started. The resistor was then in practically the same position as was the father in In re Adoption of Chinn, 238 Iowa 4, 25 N.W.2d 735.
Division III of the majority opinion suggests that the award (in the divorce decree) of the homestead and household goods to the wife might bring the case within the rule of Rubendall v. Bisterfelt, supra. There seems no sound basis for that suggestion. The divorce stipulation and decree reveal no such intent. Resistor’s duty to his children was (at his own insistence) measured and limited by the $60 monthly payments to their “support, maintenance and education * * * until the plaintiff [their *1384mother] remarries.” There is no hint in the record of the divorce proceedings or in this record or in appellant’s argument that the award to the wife was intended as a provision for the children.
It should be pointed out the recent addition to section 600.4, Code 1946, I. C. A., requiring notice of hearing (on an adoption petition) to be given “a divorced parent not having custody of the child” (chapter 281, section 4, Acts of the Fifty-second General Assembly) does not change the provisions for required parental consent found in Code section 600.3. The amendment merely insures such parent the right and opportunity to be heard in the proceeding when the propriety or wisdom of the proposed adoption is adjudicated. He is given no right of veto.
II. Nor should we hold the case triable de novo here. It is apparent the appellant did not so' consider it. He assigns five “Errors Relied on for Reversal.” See rule 344(a) (3), R. C. P. Two of them do require some factual review on the issue of the “best interest of the children.” But his “Brief and Argument” discusses them as errors and not as subjects of review de novo.
There is no indication in the record that the case was tried as if in equity — except perhaps one lone instance where the court failed to rule on a motion to strike the answer of a witness as not responsive. That certainly is insufficient.
The majority opinion predicates its holding that the case is triable here de novo1 upon some language in In re Adoption of Karns, 236 Iowa 932, 939, 940, 20 N.W.2d 474, 478; and upon an assumed analogy between cases of this bind and habeas corpus cases involving child custody.
The Earns appeal involved a proceeding to set aside ah already consummated adoption on the ground of failure to obtain the father’s consent. The appeal was not from the order of adoption, but from the court’s refusal to set it aside. The father there contended the trial court’s finding as to the wisdom of the adoption was outside the pleaded issues, but we held the trial court properly considered the issue because it had been injected into the case by the' father himself. No question seems to have been raised as to the nature of the proceedings.
In doing this the language quoted in the majority opinion was used. It does not warrant the inference drawn from it by *1385the majority and is consistent with an intention only to discuss the sufficiency of the evidence to support the trial court’s decision as a matter of law or as bearing- on whether there was any abuse of discretion in refusing to set aside the order of adoption.
The other argument advanced by the majority for trying the case de novo (the assumed analogy with child-custody cases in habeas corpus) is equally insubstantial though requiring more extended examination. The language of Justice Evans in Jensen v. Sorenson, 211 Iowa 354, 367, 233 N.W. 717, 723, is quoted.
That was a habeas corpus proceeding involving a question of child custody. It in turn cites another (similar) habeas corpus case, Barnett v. Blakley, 202 Iowa 1, 209 N.W. 412. It is true there is one important point in common between child custody and adoption: in both the welfare of the child is the paramount consideration.
But that fact does not demonstrate both custody and adoption are triable by the same kind of proceeding. Adoption involves the creation of rights of inheritance and other rights and obligations incident to the parental relation, in addition to the right of custody. I see no reason why the issue of the child’s welfare may not be tried either at law or in equity, depending on the nature of the proceeding in which it arises. That situation is not unusual. Fraud, for example, is denounced by both law and equity and may be adjudicated in either, depending on the remedy sought.
III. The method of review by us is determined by the nature of the proceeding to be reviewed. “The Supreme Court shall have appellate jurisdiction only in eases in chancery, and shall constitute a Court for the correction of errors at law * * Constitution of Iowa, Article Y, section 4.
This means of course that only equitable cases or those tried by equitable procedure can be reviewed by us de novo. All others are reviewable on errors. In re Estate of Custer, 229 Iowa 1061, 1064, 295 N.W. 848.
In order to determine whether the instant case was triable by equitable or by ordinary proceedings we must look to our general statutory provisions concerning procedure. We find that although “all forms of action are abolished” proceedings in 'civil actions *1386are either ordinary or equitable. Section 611.3, Iowa Code 1950, I. C. A. Equitable proceedings are allowed only in cases where courts of equity had jurisdiction before the adoption of the Code and are mandatory in all cases where such equitable jurisdiction was exclusive. Code section 611.4. “In all other cases, unless otherwise provided, the plaintiff must prosecute his action ly ordinary proceedings.” (Italics supplied.) Code section 611.6. Under these plain provisions the proceedings to be reviewed here should be held ordinary and not equitable, triable on error and not de novo.
Courts of equity never assumed jurisdiction (exclusive or otherwise) to grant or establish the status of parent and child. Though the practice of adoption is ancient; and though in most countries from earliest times “some intervention on the part of the State and official sanction was required to give [it] legal effect” that (strange to say) was not true in England until the passage of the “British Adoption of Children Act” in 1926.' Encyclopaedia Britannica (14th Ed.) Title “Adoption”, page 177. See 1 Am. Jur., Adoption of Children, section 3; 2 C. J. S., Adoption of Children, section 2.
Clearly we inherited no such chancery practice (or common law either) from England, since it did not exist there. In fact, no such judicial authority existed in Iowa until legislation in 1927 (Chapter 218, section 1, Acts of the Forty-second (General Assembly). See section 10501-bl et seq., Code of 1927. Prior to that time the act of adoption was consummated by the mere execution and filing of certain prescribed documents. Section 10496 et seq., Code of 1924; section 3250 et seq., Code of 1897; sections 2308-2310, Code of 1873; section 2600 et seq., Revision of 1860. No court action was required or provided. The proceeding was not judicial in character. Burger v. Frakes, 67 Iowa 460, 465, 23 N.W. 746, 25 N.W. 735. The entire subject of adoption with us is of statutory origin. Holmes v. Curl, 189 Iowa 246, 251, 178 N.W. 406; Morris v. Trotter, 202 Iowa 232, 234, 210 N.W. 131; In re Estate of Fitzgerald, 223 Iowa 141, 145, 272 N.W. 117. See 2 C. J. S., Adoption of Children, sections 34, 41; 1 Am. Jur., Adoption of Children, sections 25, 30, 50.
The historical difference between adoption and custody procedure is clear. Chancery had jurisdiction over the custody of *1387minors, quite independent of statute. Mollring v. Mollring, 184 Iowa 464, 469, 471 et seq., 167 N.W. 524, 528. See Johnson v. Levis, 240 Iowa 806, 809, 38 N.W.2d 115, and further authorities cited in the dissenting opinion in that case. This was on the ancient theory that chancery (representing the king) occupied the position of parens patriae in such cases and the decision as to custody was always subject to modification if changed conditions required. Power v. Power, 65 N.J.Eq. 93, 50 A. 111, 114. No such consideration attends the creation of parental status by adoption. When done it is final and there is no occasion for the court to retain jurisdiction in anticipation of possible future change of circumstances. Formerly, under our statute, the adopting parent might by misconduct lose the right of custody, but the child’s acquired right of inheritance remained unimpaired. Code of 1873, section 2311; Code of 1897, section 3254; Code of 1924, section 10501.. See, for more extended discussion of the power or jurisdiction of equity in relation to the custody of minors, Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 939 et seq., 14 A. L. R. 286.
Of course the appeals in adoption cases since 1927 are not numerous. Indeed the right of appeal itself was seriously questioned as late as 1944. In re Adoption of Alley, 234 Iowa 931, 14 N.W.2d 742. I find no such appeal in which we have reviewed de novo. There seems to be no logical basis in our statutes or on historical considerations for holding such proceedings equitable in character. Until the legislature in some manner provides otherwise I think we should act in such cases as “a court for the correction of errors” Nor does there seem to be any sound reason for a different rule. Trial courts are just as competent to decide the question of the child’s best interest as they are to adjudicate the myriad other fact questions coming before them in ordinary proceedings. See Fries v. Phillips, 189 Ark. 712, 74 S.W.2d 961; 2 C. J. S., Adoption of Children; section 41.
IY. There remains then but one other question here: the sufficiency of the evidence to support the trial court’s finding that the adoption was in the best interest of the children. I think no one of us% would contend the evidence on that issue is not in conflict. The trial court, after hearing the testimony and *1388seeing tbe parties, determined it in favor of tbe adoption “without any hesitancy.” Whether we agree or disagree with the conclusion as a matter of fact is immaterial. There appears no such abuse of discretion as to justify our intervention. I would affirm.
Oliver, C. J., and Garfield, J., join in this dissent.