(dissenting) — In a case where an adult incapacitated child is seeking support from his father, both residing in Iowa, the trial court, as a court of equity, grants such relief and the father appeals. The majority opinion affirms the trial court and I respectfully dissent.
The opinion affirms upon two propositions: (1) inherent power of a court of equity and (2) chapter 252A, Code of 1950. Both, in my opinion, are unsound.
*280I. As to the power of a court of equity, irrespective of any statute:
The opinion appears to rely upon Addy v. Addy, 240 Iowa 255, 264, 36 N.W.2d 352, 358, quoting therefrom as follows: “The father’s duty of 'support is not measured by these statutes. It is the right of the child to receive and the obligation of the parent to furnish support to the end resort to any of these statutes need not be had.” Of course, the Addy case is in no way material or the law announced there applicable to the instant case. It involved the right of a mi/nor child to receive support from its parents. This case is concerned with the right of an adult incapacitated child to receive support.
Section 611.4, Code of 1950, states when a court of equity may act in the absence of statutory authorization. It says that an action in equity may be had in all cases where courts of equity had jurisdiction before the adoption of this Code. It first appears in the Revision of 1860. There is no doubt but that at common law, long before the adoption of the Code, the duty was recognized that a parent owed a duty to support his mmor child and the matter was determined in equity. It does not follow from this, that equity has jurisdiction in the case of adults.
The statement in the opinion to the effect that the common law recognized an exception in the ease of an incapacitated adult child and cast a duty upon the parent to support him is not, in my opinion, a correct statement and is not supported by the authorities. Annotation 1 A. L. R.2d 910. The only Iowa case cited is Addy v. Addy, supra. Such a duty does exist in Iowa and has existed for more than a hundred years, but it is solely under statutes which first appear in the Code of 1851, section 787, and now found in chapter 252, Code of 1950. Not only was the duty there created but the procedure for its enforcement was outlined. It provides for a jury trial, upon request, and is a matter for the law court. Section 805, Code of 1851 (section 252.12, Code of 1950). In Wright County v. Hagan, 210 Iowa 795, 231 N.W. 298, this court held a strict compliance with the statute was a prerequisite to' recovery. In effect, the majority would overrule this decision and does ignore the statute. The duty created by statute is recognized, though attributed to the common law,'and an entirely new, and heretofore unknown, pro*281cediire adopted. It may be that the provisions of chapter 252 are inadequate and cumbersome as claimed by 'the majority, but it is for the legislature-and not the court to correct. Even assuming that chapter 252A creates a new civil remedy in cases of the type under consideration, the matter is still triable at law, since the said chapter does not grant equity the right.
While the instant case was tried in equity, such procedure was requested by respondent and no error may be predicated thereon. However, until and unless the legislature adopts the rule of procedure sanctioned here, I will ride along with the legislative enactments as they now exist.
II. The second proposition advanced in the majority opinion is that under chapter 252A petitioner is entitled to the relief asked. Assuming this proposition to be correct, the sole instance where petitioner even attempted to comply with the provisions of this chapter was the filing of a petition in the district court. From then on both petitioner and trial court apparently lost sight of the statute and proceeded under an assumed inherent right in a court of equity.
Two factors are advanced in the opinion as a basis for holding chapter 252A to be applicable.
(1). It is said that throughout the chapter is found repeated reference to the situation found in the existing case; that section 252A.3(3) specifically specifies such shall be dealt with under the provisions of said chapter. It is conceded that the chapter does refer to such a situation, and standing alone such reference would appear to make the chapter applicable. However, I respectfully submit that, when read and examined in the light of the wording and clear intent and purpose of the chapter, it is apparent that such was not the legislative intent. Section 10, chapter 103, Acts of the Fifty-third General Assembly, not appearing in chapter 252A as it appears in the Code, would seem to be applicable and intended to meet just such a situation.
(2). The real question, so far as chapter 252A being applicable here, is one of procedure and not substantive law — with the remedy — not the right. The majority opinion does not contend that this chapter creates a new substantive right, except perhaps as to the ability of the parent to pay. The duty created by the Code of 1851, now chapter 252, Code of 1950, is recognized.
*282It is claimed that chapter 252A creates a new procedural right. Section 252A.6(1) authorizes the petitioner to file a petition in the district court of the county wherein he resides. It says, “A proceeding under this, chapter shall be commenced by a petitioner filing a verified petition in the [district] court * * (Italics mine.) In cases where applicable this chapter does create a new procedural right. This is discussed later herein. It does not in this case, in my opinion, create any right, procedural or otherwise.
Section 252A.6(2) provides: “If the respondent be a resident of or domiciled in such state [where petition is filed] and the court has or can acquire jurisdiction of the person of the respondent under existing laws, in effect in such state, such laws shall govern and control the procedure to be followed in such proceeding.” (Italics mine.)
Under the majority opinion, this section means nothing more than that the local laws shall govern and control the manner in which the notice to bring respondent into court is served. I think it has a much broader meaning. It is somewhat significant that by section 252A.6, subsections (3) and (4), dealing with instances where the parties do' not reside in the same state, jurisdiction is attained by the giving of a summons, without reference to the existing laws. The majority opinion has this to say upon this question: “ ‘such proceeding’ means a proceeding commenced under this chapter by petitioner in court.” It does, and the term “proceedings” means “every step from the filing of the petition until the final determination of the controversy. It includes the issuance and service of process”, International Paper Co. v. Commonwealth, 232 Mass. 7, 11, 121 N.E. 510, 511. See also Bankers Trust Co. v. Scott, 215 Iowa 1107, 246 N.W. 836. The opinion further says: “The words ‘existing laws in effect in such state’ refer to laws under which the court ‘can acquire jurisdiction of the person of the respondent.’ ” They do say that and, as I contend, much more when read in the light of the entire section. The section (252A.6(2)) further says “such laws shall govern and control the procedure to be followed in such proceeding.” (Italics mine.) In Bascom v. District Court, 231 Iowa 360, 364, 1 N.W.2d 220, it is said that “practice” and *283“procedure” include the mode of proceeding and the steps by -which a legal right is enforced as distinguished from the law which creates, defines and protects rights. Thus, under our decisions, these words “procedure” and “proceedings” appear to be synonymous unless it should appear that one or the other is used in a more restricted sense. The majority opinion would limit the meaning of the term “procedure” to the serving of the notice. Assuming this to be correct, there does not appear to be any like limitation given to the term “proceedings.” Irrespective of the sense in which these two words may be used both refer to the remedy and it must be presumed that the right, for which they provide the remedy, is existent. Jurisdiction of the respondent, as used here, must imply an effective jurisdiction; that is with power to act, which means the court has jurisdiction of the subject matter. No matter how inadequate the law might be, if, under existing laws in effect in the state irrespective of chapter 252A, provision has been made by the legislature for the question to be determined in the courts of the state, such laws must be resorted to. This, it seems to me, is the clear intent and meaning of section 252A.6(2). Chapter 252 provides such, both as to right and remedy. The provision in chapter 252A for the filing of a petition in the court by a petitioner may be applicable to some states, which as a reciprocal measure adopt a like statute, but is inapplicable in Iowa.
It seems to me that the above express meaning and .application of chapter 252A is further fortified when read in the light of the purpose and intent of the chapter. It is entitled “Uniform Support of Dependents Law.” Throughout the chapter is found repeated reference to “another state having substantially similar or reciprocal laws.” The entire method of procedure, except serving of notice, is foreign to our Rules of Civil Procedure.
From time immemorial it has been the primary duty of the state to care for its own poor. Since the Code of 1851 laws have existed in Iowa whei'eby this duty might be shifted to certain named parties where they were amenable to our courts. It is of no concern to Iowa how other states may handle like problems. However, with the growing number of eases where the one liable for support has departed into another state and beyond the reach of his home state, leaving the dependents as the burden of the *284state, a serious problem was created. Only when and if the state to which the party has departed opens its courts for the enforcement of a duty existing in another state would a civil remedy be available. This uniform law was adopted to meet the situation. It is sort of a “you scratch my back and I’ll scratch yours” arrangement. Section 252A.8 says it “shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and madwble to the petitioner in relation to the same subject matter.” (Italics mine.) It is clearly an additional remedy in that it allows recovery from an absentee, which did not previously exist. It is not an alternative remedy as previously none existed, i.e., civil remedy. It does provide an alternative remedy in that there was existing a criminal remedy. It safeguards against a claim that proceeding under this chapter precludes use of the criminal remedy. Vincenza v. Vincenza, 197 Misc. 1027, 98 N. Y. S.2d 470, In my judgment, this chapter must be limited in application to cases where diversity of citizenship is involved.
III. A brief comment upon Division II of the majority opinion: Section 252A.7 says that it is the duty of the petitioner’s representative to appear at all stages of the proceedings from the time of the filing of the petition. In the lower court the County Attorney’s office appeared only when the actual trial commenced and then only as a friend of the court. He took no active part in the trial and files no brief and argument here. I am unable to follow the reasoning adopted by the majority opinion, as a more specific directive of a duty would be hard to phrase.
I would hold that chapter 252A is not available to the petitioner in this case; that chapter 252 is the proper remedy; that it is a matter triable only at law. I would reverse the decree of the trial court.
Mulroney, J., joins in this dissent.