[3]*3Loring, Chief Justice.
This action, under M. S. A. c. 257, was to determine defendant’s paternity of an illegitimate female child horn to complainant, Bertha Selin. A jury rendered a verdict of guilty. Miss Selin comes here on appeal from the support order of the court which followed the verdict.2
February 16, 1944, complainant, Bertha Selin, gave birth to an illegitimate child in the city of Ironwood, Michigan. She later brought the matter to the attention of the county attorney of St. Louis county, Minnesota, where defendant resided, but the county attorney was of the opinion that he should not take any action. Therefore, she filed a complaint in her own behalf in the municipal court of Duluth, Minnesota, under M. S. A. c. 257 (§ 257.19), charging defendant with being the father of her child. At this point, the county attorney entered the proceedings and prosecuted the trial in the district court. A verdict of guilty was returned by the jury, and judgment was entered on March 31,1948, pursuant to the verdict.
Subsequently, the court ordered defendant to pay complainant $317 for lying-in expenses; $1,000 for the support and maintenance of her child from the date of birth to the date of the judgment; and $35 a month thereafter; but, in lieu of the $1,000 and the monthly payments of $35, the court ordered that he pay, in addition to the $317, the sum of $4,500 to be paid to the director of social welfare in full settlement of all obligations for care, maintenance, and education of the child. Defendant petitioned the court for an order confirming the $317 item, approving the $4,500 lump-sum payment, and discharging him from further liability. The director of social welfare consented to the lump-sum payment. A hearing was held August 2, 1948, to consider defendant’s petition, at which time complainant, without objection by the county attorney, appeared and estimated the cost of support for her daughter and asked the court for permission to cross-examine defendant with reference to his financial situation or that she be furnished with reliable in[4]*4formation in reference thereto. This was refused, and the court entered an order approving defendant’s petition.
The right of the mother to appeal is challenged by the dissent. We take the view that she has a definite personal financial interest in the amount of the award for support, and therefore that she is an aggrieved party entitled to appeal, under M. S. A. 605.09. She has a right in the proceeding to recover her lying-in expenses and the expense of support of the child prior to the judgment. Her secondary responsibility for support gives her a direct interest in the amount of the award against the father, whose responsibility is primary. Should the award be insufficient for the child’s support, the burden of her secondary responsibility would be correspondingly increased, and, as natural guardian of her child, she is the person most interested in protecting its rights and interests.
In most states, as in this, illegitimacy proceedings are civil in nature and are governed by the rules of procedure applicable to civil actions. 10 C. J. S., Bastards, § 32; State v. Jeffrey, 188 Minn. 476, 247 N. W. 692. In a few jurisdictions they are considered to be criminal in nature.3 This is usually because the statute creating the particular proceeding provides for the punishment of the putative father. In some states, the proceeding is neither civil nor criminal, but partakes somewhat of the nature of both. 10 C. J. S., Bastards, § 32. Usually, the mother institutes the proceeding by a complaint (see M. S. A. 257.19), but statutes often provide that if she refuses or neglects to prosecute public authorities liable for the support of the child can prosecute. 10 C. J. S., Bastards, § 52. See, M. S. A. 257.18. In Rhode Island and New Jersey, the proceeding can only be instituted by a public agency.4
[5]*5In the majority of jurisdictions, the mother is a party by express provision5 or by implication from the context of the statute.6 An exhaustive examination of the cases from the states which have statutes similar to the majority discloses no holding at present in force that the mother is not a party. On the contrary, the cases hold either expressly or by implication that the proceeding is for the mother’s benefit and that she is a party.7 Moreover, eight states, [6]*6having statutes 8 providing for prosecution by the state’s attorney fall within this group.
In this state the proceeding is civil in nature — “the state merely loans its name to be used as plaintiff.” State v. Jeffrey, 188 Minn. 477, 247 N. W. 693; State v. Hansen, 187 Minn. 235, 244 N. W. 809; State v. Thompson, 193 Minn. 364, 258 N. W. 527; State v. Wenz, 41 Minn. 196, 42 N. W. 933. In general, our provisions (c. 257) are similar to those states forming the majority group, but our statute is more liberal toward the child and more comprehensive as to the responsibilities of the adjudged father than that of any other state. With the exception of the immunity afforded by an award under § 257.28, the statute completely supersedes the primitive common-[7]*7law rules with, reference to illegitimate children and their fathers. Even that immunity seems to be somewhat qualified by the last sentence of § 257.23. The terms of the statutes evince a purpose to place the illegitimate father in as responsible a position toward the child as if the child were legitimate. There are other provisions which, as in most of the jurisdictions, indicate an intention that the proceedings are for the benefit of the mother as well as the child and the public, and which give her sufficient interest to be a party.
Section 257.23 provides in part:
“* * * If he is found guilty, or admits the truth of the accusation, he shall be adjudged to be the father of such child and thenceforth shall be subject to all the obligations for the care, maintenance and education of such child, and to all the penalties for failure to perform the same, which are or shall be imposed by law upon the father of a legitimate child of like age and capacity.” (Italics supplied.)
As we said in State v. Jeffrey, 188 Minn. 479, 247 N. W. 693:
“* * * The statute imposes a natural and moral duty — a threefold duty:
“(1) The father’s duty to the mother, to whom he owes more than gratitude, since by his conduct he has in a measure contributed to her social ostracism and the impairment of her earning power;
“(2) The father’s duty to his own child; and
“(3) The father’s duty to protect the public against the child’s becoming a public charge.”
■ - -- —, - • '"•'•Jrewit' j
Early in the jurisprudence of this state, it was held that proceedings under the illegitimacy statutes were “also for the protection and benefit of the mother.” State v. Zeitler, 35 Minn. 238, 240, 28 N. W. 501, 502; State ex rel. Schumacher v. Hausewedell, 94 Minn. 177, 102 N. W. 204; State v. Nestaval, 72 Minn. 415, 75 N. W. 725; see, State v. Dougher, 47 Minn. 436, 50 N. W. 475; State v. Jeffrey, supra; Ladd v. Martineau, 205 Minn. 129, 285 N. W. 281; see, M. S. A. 257.33. In State v. Zeitler, 35 Minn. 238, 239, 28 N. W. [8]*8501, 502, we quoted with approval the following passage from the case of Hoffman v. State, 17 Wis. 615, 616:
“* * * The maintenance of a child includes its entire maintenance from its birth onward. It was the design of the statute to compel the father to bear this burden, not only for the protection of the public, but also for the protection and benefit of the mother, whom he had brought into a condition which to a certain extent drives her from society and renders it difficult for her to support either herself or her child.” (Italics supplied.)
Our view that the mother is a party is also supported by the legislative history of c. 257. G. S. 1866, c. 17, § 2, provided that the state of Minnesota should be plaintiff in the action which the justice enters in his docket. This provision has existed in substantially the same form up to the present time. (M. S. A. 257.20.) G. S. 1866, c. 17, § 12, provided that when the mother commenced an illegitimacy proceeding and fcdled to prosecute the same the commissioners of the proper county or any person interested in the support of the child might prosecute the action to final judgment. G. S. 1878, c. 17, § 12; G. S. 1894, c. 17, § 2050; R. L. 1905, c. 17, § 1576; G. S. 1913, c. 17, § 3223. This section was not reenacted in L. 1917, c. 210. Nothing was said as to the prosecution of the action by the state until L. 1909, c. 275, § 1, which amended E. L. 1905, § 1569, wherein it was stated: “It shall be the duty of the county attorney to prosecute all proceedings under this act in any court of this state.” This provision remained in G. S. 1913, c. 17, § 3216, until deleted by L. 1917, c. 210, § 1, amending G. S. 1913, c. 17. Again, the statutes were silent as to the prosecution by the state of illegitimacy proceedings.9 Finally, by L. 1941, c. 150, § 1, amending Mason St. 1927, § 3261 (now M. S. A. 257.19), the county attorney was again given the duty of conducting the action.
[9]*9If the mother was once a party, as is clearly indicated by State v. Zeitler, 35 Minn. 238, 28 N. W. 501; State ex rel. Schumacher v. Hausewedell, 94 Minn. 177, 102 N. W. 204; and State v. Nestaval, 72 Minn. 415, 75 N. W. 725, when and by what provision was this right taken from her? It cannot be claimed that the omission of G. S. 1913, c. 17, § 3223,10 by L. 1917, c. 210, thereby eliminated her direct general financial interests which also directly affected the child’s interests, when the express purpose of the changes enacted by L. 1917, c. 210, was to give greater protection to illegitimate children than had formerly been the case. See, Report of Minnesota Child Welfare Commission, 1917. As stated by the commission, p. 9:
“* * * The fundamental idea is the proposition that the state is the ultimate guardian of all children who need what they cannot provide for themselves and what natural or legal guardians are not providing.”
The whole of the legislative history indicates a purpose to strengthen illegitimacy proceedings. Thus, the amendatory provision of L. 1941, c. 150, § 1, which places the duty of prosecution upon the county attorney, like the lending of the state’s name to the mother under which to conduct the proceedings, was not intended to deprive the mother of any of her interests in the proceedings, but to furnish her his assistance in conducting the trial. The part of the section theretofore in force, vesting the mother with the right to initiate the proceeding against the father (§ 257.19), was left in exactly the same form as it had been previously. Before the 1941 amendment, the mother could initiate the action and prosecute it to final judgment. See, State v. Wiebke, 154 Minn. 61, 191 N. W. 249. Such an interpretation of the legislative intent is not only the more reasonable and justifiable, but is in harmony with c. 257 on illegitimate children and its legislative history, which indicates that the legislature intended to give as much aid and pro[10]*10tection to the mother as possible. See, for example, L. 1917, c. 210, § 1; L. 1921, c. 489, § 1; L. 1943, c. 201, § 1; State v. Zeitler, 35 Minn. 238, 28 N. W. 501; State v. Jeffrey, 188 Minn. 476, 247 N. W. 692; Ladd v. Martineau, 205 Minn. 129, 285 N. W. 281. That the county attorney should be required to conduct the prosecution comports with the legislative intent to assist the mother as well as to protect the county’s interest so that the child may not become a public charge.
The dissent contends that the elimination by L. 1917, c. 210, of the mother’s right to settle the liability of the father and the addition of § 3225(a) in L. 1917, c. 210, authorizing the state board of control or a duly appointed guardian to effect a settlement, subject to the court’s approval, indicates that the mother is not a party. But, see, State v. Jeffrey, 188 Minn. 476, 247 N. W. 692; Ladd v. Martineau, 205 Minn. 129, 285 N. W. 281. When viewed separately from the other provisions of M. S. A. c. 257, this section (§ 3225[a]) lends some support to the dissent. But, when the statute on illegitimacy is read as a whole, it appears that many other sections give the mother rights which can only be adequately protected by giving her a standing in court, including the right to appeal.
The mother’s personal financial interest in the proceeding is evidenced by the provisions, of § 257.23, which require the court to fix the amount and order defendant to pay the mother for the expenses of her confinement, as was done in this case. See, L. 1921, c. 489, § 1; L. 1943, c. 201, § 1; State v. Zeitler, 35 Minn. 238, 28 N. W. 501. Section 257.23 also requires the court to fix the amount the mother is entitled to have defendant pay her for the “care and maintenance of the child prior to judgment” (Opinion Attorney General, No. 840-C-4, May 6, 1927), and not to the director of social welfare, as was erroneously done in the lump-sum settlement in the case at bar.11 Who but the mother can complain of this error? If the position of the dissent is valid, the state would not [11]*11complain, because, according to tbe dissent, its duty and only interest is to see that society does not have to support the child.
Section 257.21 lends added support to the conclusions that the mother has the right to appeal under § 605.09. By § 257.19, it is within the -discretion of the county attorney to refuse to prosecute the action. If he does so and the position of the dissent is valid, it follows that the mother is without remedy. The county attorney may, in effect, decide the case against her, but she cannot prosecute the action and appeal from an adverse decision, because she has no aggrieved interest. Yet, under § 257.21, judgment of paternity is a condition precedent to the mother’s right to bring the civil action there authorized. It is also inferable from the dissenting opinion that the county attorney’s duty is only to protect the interests of the public in seeing that the child does not become a public charge. Thus, when the child is still born or dies after birth, the county attorney would have no interest of the state to protect by prosecuting the action.12 Were the position of the dissent correct, the mother would not be able to recover burial expenses or medical bills in connection with her sickness and the child’s without a judgment of paternity — which she could not obtain. This construction, in effect, renders an important part of § 257.21 a nullity.
In Haugen v. Swanson, 222 Minn. 203, 23 N. W. (2d) 535, we held that it is the primary duty of a father of a legitimate child to support his minor children and that the mother’s duty is sec[12]*12ondary to Ms. If the support order against the adjudged father is inadequate, the mother will have to take over the obligation to support. See, State v. Nestaval, 72 Minn. 415, 416, 75 N. W. 725. Consequently, she has a direct financial interest in the amount with which the father is charged. State v. Nestaval, supra.
Since the child cannot appeal in its own right, the mother, as natural guardian and custodian, is, by common sense and human experience, the person most interested in protecting the child’s right as well as her own. To refuse to allow her to appeal jeopardizes the primary purpose of the statute. If the position of the dissent is correct, it leaves open to the county attorney and the director of social welfare the right to compromise, without recourse to this court and without reference to the interests of the mother, the very interests of the child which the statute is aimed at safeguarding. Where the mother’s financial position is such that the child is not likely to become a public charge, the county attorney may refuse to prosecute (see, Opinion Attorney General, No. 121-B-ll, October 30, 1945), or he and the director of social welfare may believe that a small award or no award at all will suffice to protect the public. Yet such a result is directly contrary to the announced legislative intent to make the adjudged father as responsible for his child as the father of a legitimate one. We cannot acquiesce in such a view. It not only does violence to the policy of c. 257, but it fails to recognize that the mother is the best protector of the child’s interests.
Thus, we conclude that the legislature, having lent the state’s name and the assistance- of the county attorney to the mother, did not intend to eliminate her right to protect her interests ánd those of her child by providing for a compromise of the father’s liability between the director of social welfare and the father. Viewed in the light of the provisions giving the mother the right to initiate the proceeding, the right to the expenses of her confinement, the right to support moneys expended prior to judgment, the right, conditioned on the judgment of paternity, to maintain a civil action for confinement, burial, and medical expenses, and [13]*13the right to have the father fulfill his primary duty of support, we are of the opinion that the interpretation of the legislative intent advocated by the dissent is not well taken.13 Cf. State v. Nestaval, 72 Minn. 415, 75 N. W. 725. It totally disregards the other provisions in the statute, and it does not further the legislative intent to protect the interests of the child.
The dissent places considerable reliance on Lawson v. McLeod, 189 Minn. 93, 248 N. W. 658. In that case, the court, speaking through Mr. Justice Hilton, holds that the mother cannot bring a civil action to recover from the adjudged father money expended by her in the care and support of the illegitimate child, where the father cannot be held in contempt of court because of his inability to comply with the court’s order to pay the welfare board certain sums for the care, support, and education of his child. Defendant had already been adjudged the father of plaintiff’s child in a separate proceeding and was in default because of lack of employment.14 The Lawson case is not authority for the proposition that [14]*14the mother is not a party to the illegitimacy proceeding or to the proceedings to adjudicate a support order. It merely reaffirms the provisions of § 257.23 that the support money provided for by the court’s order is to be paid to the state and not directly to the mother. Further comment in the opinion is dictá.
The dissent makes the broad statement that, although there are few cases in point when the question of the mother’s right to appeal has been considered, the cases hold that, in the absence of a statute granting the mother the right to appeal, she has no such right. We do not so interpret the cases cited by the dissent in support of this view. In New Jersey, the proceeding can only be instituted by a public agency (New Jersey Stat. Ann., title 9, c. 17), and only the defendant and the municipality are authorized to appeal. Art. 4, § 9:17-20. Hence, Thatcher v. Hackett, 16 N. J. Misc. 459, 1 A. (2d) 438, and Nutt v. Arbitelli, 3 N. J. Misc. 1194, 131 A. 64, cited in the dissent, are not helpful, since the mother in this state may institute the proceeding, and there is no statute similar to that of New Jersey which limits the right of appeal to defendant and the municipality. Likewise, cases which treat illegitimacy proceedings like criminal cases and hold that the state cannot appeal (State ex rel. Borland v. Yates, 104 Or. 667, 209 P. 231; State v. Wright, 39 Del. 552, 3 A. [2d] 74) are not helpful in Minnesota, because the state can appeal here. Cf. State v. Riegel, 194 Minn. 308, 260 N. W. 293; see, State v. Nelson, 221 Minn. 569, 22 N. W. (2d) 681; Opinion Attorney General, No. 6 A, December 10, 1927. (That the Yates case is not authority in Oregon for the proposition that the mother is not a party, see State ex rel. Burghart v. Haslebacher, 125 Or. 389, 393, 266 P. 900, 902; State v. Morrow, 158 Or. 412, 430, 75 P. [2d] 737, 744, 76 P. [2d] 971.)
The case of Waterloo v. People ex rel. Schreiber, 170 Ill. 488, 48 N. E. 1054, holds that the release by the justice of the peace of a defendant charged with illegitimacy is no bar to another examination before another justice of the peace on the same charge. This rule is accepted law in this state. State ex rel. Ortloff v. Lin[15]*15ton, 42 Minn. 32, 43 N. W. 571, but it is not a holding that the mother is not a party. Indeed, the supreme court of Illinois has held that “a prosecution under the bastardy act being a civil suit, and for the benefit of the mother of the child, * * * she is the real party in interest.” McCoy v. People, 71 Ill. 111; see, People ex rel. Lesner v. Vacianos, 304 Ill. App. 580, 26 N. E. (2d) 623.
The case of People ex rel. Board of Police v. Shulman, 8 App. Div. 514, 40 N. Y. S. 779, is no longer the law of New York, in view of § 136 of the Domestic Relations Law (14 McKinney’s Consol. Laws New York Ann., c. 14, art. 8, § 136), which expressly provides that the mother may appeal. Nor is it helpful here, since the prior statute in New York was not similar to our own.
State v. Schwartz, 67 Ohio App. 69, 35 N. E. (2d) 860, cited in the dissent, was a prosecution under 10 Page’s Ohio General Code, § 13008, by the state against the father for failure to support his illegitimate child. The statute provides for imprisonment “in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more than three years.” Cf. M. S. A. 617.55, and see, State v. Jeffrey, 188 Minn. 476, 247 N. W. 692. That case was not a proceeding under the illegitimacy statutes of Ohio. (See, 9 Page’s Ohio Gen. Code Ann., c. 2, § 12110, et seq., wherein the mother is spoken of as a party. See, § 12114; see, also, Devinney v. State [Ohio] Wright, 564; State v. Ward, 19 Ohio Dec. 744-747, 8 N. P. [N. S.] 561; Scott v. Wix, 71 Ohio App. 519, 50 N. E. [2d] 361; State ex rel. Walker v. Clark, 144 Ohio St. 305, 58 N. E. [2d] 773, to the same effect.)
We agree with the dissent that whether the mother is a party or not must be determined from an interpretation of our own statutes. Our views are based thereon, and our reasons are set out at length supra. Our position is in accord with the great weight of authority. As pointed out in the preceding portion of this opinion, illegitimacy statutes fall into three general categories, namely, criminal, quasi-criminal, and civil. By far the greater number are civil in nature, among which, in more than [16]*16half, the mother’s right to be considered a party is at least infer-able. As to the remainder, the statutes expressly provide that the mother is a party. Our statute is civil in nature and is the most comprehensive with regard to the liabilities of the father. Hence, the decisions from jurisdictions in which the mother’s right to be a party is inferable from the context are very persuasive in the case at bar. See footnote 7, supra. We find no case in point from these jurisdictions, and the dissent has cited none. We are convinced that our legislature, in accord with the pattern set by the great majority of the other states, intended that the mother should still be a party to the proceedings and should have the right to appeal when aggrieved. A contrary result would not only violate the legislative intent and obvious purpose but would be out of line with the great majority of jurisdictions.
Complainant’s principal contention is that she had a right to cross-examine defendant with regard to his financial situation. That the court should consider the financial status of the father is not questioned by defendant, but he contends that the trial court was informed of Ms financial status during informal conferences, a record of which was not kept. Thus, complainant is met with the claim that, because all the evidence on which the trial court’s order was based is not before this court, her appeal should be dismissed, or, if that be denied, then that the order be affirmed.
A question of due process is raised by denying the mother the right to cross-examine the adjudged father as to his financial situation. The amount of the award is, for the trial court to determine without a jury. M. S. A. 257.23 ; 3 R. C. L. 767, Doughdrill v. Hothorn, 160 Miss. 290, 133 So. 131, 74 A. L. R. 763. In making its order, the court should carefully inquire into the financial standing and ability of the father. State v. Reese, 43 Utah 447, 467, 135 P. 270, 278; State v. Hammond, 46 Utah 249, 255, 148 P. 420, 423; James v. Commonwealth, 190 Ky. 458, 461, 227 S. W. 562, 563; Annotation, 74 A. L. R. 763. However, since no record of the informal conferences or hearings was kept, this court is not in a position to review the challenge to that court’s order. In the [17]*17case at bar, complainant’s request to examine defendant relative to his financial position was denied. If evidence had been produced and a record made thereof showing his financial status, this court would be in a position to determine whether or not the order was supported by the evidence. See, State ex rel. Sime v. Pennebaker, 215 Minn. 75, 9 N. W. (2d) 257. The statute is silent as to the procedure for making a support order, except that it requires notice to the interested parties. Under present law, the court, not the jury, determines the terms of the support order.15 The right to a full hearing upon the issues before the court not only should be implied from the language of the statute and the earlier provisions,-but it is in accord with the dictates of procedural due process. See, Consolidated Edison Co. v. N. L. R. B. 305 U. S. 197, 226, 59 S. Ct. 206, 215, 83 L. ed. 126, 138.
The trial court in the instant case granted a hearing but refused to permit complainant to examine defendant on his financial status, on the ground that the court had already obtained such information, although it was not in the record. In the New England Divisions Case, 261 U. S. 184, 200, 43 S. Ct. 270, 277, 67 L. ed. 605, 614, Mr. Justice Brandéis, speaking for the court, said:
"* * * full hearing is one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law, of the step asked to be taken.?’
Due process requires that every person shall have the protection of his day in court and an opportunity to be heard in order to establish any fact which will protect his rights. Hamrick v. [18]*18Bryan (D. C.) 21 F. Supp. 392; see, City of Buffalo v. Hawks, 226 App. Div. 480, 483, 236 N. Y. S. 89, 93. In the ease at bar, complainant should have had an opportunity to put defendant’s financial situation and earning ability in evidence and to have a record made thereof so that there might be a review of the order by this court. Bennett v. State, 147 Okl. 14, 294 P. 149; cf. State ex rel. Sime v. Pennebaker, 215 Minn. 75, 9 N. W. (2d) 257. In Life & Casualty Ins. Co. v. Womack, 228 Ala. 70, 71, 151 So. 880, 881, the court stated:
“* * * Due process of law is provided when the party is given full opportunity to present the questions of law and fact in the trial court, with the right to reserve questions for review, and have them reviewed by the appellate courts. All this is provided for by law in an orderly administration of justice.”
The exclusion of competent and relevant evidence on the ground that the trial court was in possession of the evidence, although it was not in the record, is not due process (see, Chicago Junction Case, 264 U. S. 258, 265, 44 S. Ct. 317, 320-321, 68 L. ed. 667, 674), and an order based thereon cannot be sustained. Kessler v. Williston, 117 Ind. App. 690, 75 N. E. (2d) 676; Church v. Western Finance Corp. (Tex. Civ. App.) 22 S. W. (2d) 1074. Cf. Riedrich v. Riedrich, 62 Pa. Sup. 189.
The assumption that complainant waived her rights to cross-examine defendant by consenting to an informal conference between herself and the trial judge xis not tenable. The only information which the trial judge could have obtained from her related to her own financial status and the requirements of her child.
The record fails to show that complainant consented to informal conferences between the trial judge and defendant, a procedure of which we disapprove as a basis for an award. The statute does not contemplate anything but a judicial hearing conducted in a judicial manner, open to both or all of the parties interested. This, of course, does not preclude a stipulation as to the terms of the award by all parties interested.
[19]*19We come to complainant’s objection to a lump-sum payment. The claim is made that the lump sum does not provide for contingencies and therefore does not protect the interests of the child. Even so, the fact remains that the legislature, in adopting § 257.28, has authorized a lump-sum settlement and provided the father with a method of relieving himself of future liability, both civil and criminal.
Defendant contends that in fixing the amount of the award the court should consider the financial status of the mother. Under § 257.23, the adjudged father is subject to all the obligations for the care, maintenance, and education of the child as the father of a legitimate.child. The law is settled that the father of a legitimate child owes a primary duty to support his minor child and that the mother’s obligation is secondary to his. Haugen v. Swanson, 222 Minn. 203, 23 N. W. (2d) 535; cf. Beigler v. Chamberlin, 138 Minn. 377, 165 N. W. 128, L. R. A. 1918B, 215. Therefore, the mother’s ability to support her child is irrelevant to the question of what the father should pay. To the extent that the trial court takes the mother’s means into consideration in modifying the amount of the father’s liability in making the support order, it is relieving the father of his primary duty, contrary to our view of the law.
The court was in error in basing its award on support only up to the age of 16. The duty of support continues until the child is no longer a minor. M. S. A. 518.17. See, Sivertsen v. Sivertsen, 198 Minn. 207, 212, 213, 269 N. W. 413, 416. See, also, State v. Johnson, 216 Minn. 427, 429, 430, 13 N. W. (2d) 26, 27, 155 A. L. R. 23.
Defendant contends that a father is not responsible for a minor’s support beyond 16 years of age because M. S. A. 617.55 makes it a felony for a parent to intentionally abandon and avoid legal responsibility for the care and support of a child under 16 years of age and unable to support himself by lawful employment. Cf. § 617.56. We disagree with that contention. Merely because defendant cannot be punished in a criminal prosecution for failure [20]*20to support his child after its sixteenth birthday does not relieve him from liability in a civil proceeding for support. § 257.23, and see, also, § 257.33. Hence, we hold that the trial court, in formulating its order, should consider the father’s responsibility throughout the minority of the child and not limit the award to his liability to the age of 16.
The order of support is vacated and the case remanded with directions for a hearing and order in accordance with the views herein expressed.
Reversed.