
    [No. 5009.]
    MONROE M. SPEEGLE v. JACOB R. LEESE.
    Finding of Facts.—If an action is tried by the court without a jury, it is the duty of the court to find upon all the material issues made by the pleadings, whether evidence upon an issue is introduced or not.
    Appeal from the County Court of Monterey County.
    At the general election held in Monterey County on the first day of September, 1875, the -plaintiff and defendant were voted for for the office of recorder of the county. The Board of Supervisors canvassed the votes, and declared that the defendant had received 1016 votes, and the plaintiff 1015 votes. The plaintiff contested the election, and averred that votes were cast at a place where there was no legal election precinct, which were counted, and that Leese received sixteen and he nine of them; and that illegal votes were cast for Leese at other precincts. The county judge found several facts, but omitted to find how many votes each of the candidates or either of them had received at the election.
    Judgment was rendered for the defendant.
    The plaintiff appealed.
    
      Woodside & Geil and D. M. Delmas, for the Appellant.
    
      H. Mills, for the Respondent.
   By the Court, Crockett, J.:

The controlling issue made by the pleadings was upon the question whether the plaintiff or defendant received a majority of the legal votes cast at the election. The court below wholly omitted to find upon this issue, and if the fact be that no evidence on this point was introduced, either by the plaintiff or defendant, this does not excuse the want of a finding. It is the duty of the trial court to find upon all the material issues made by the pleadings, whether evidence be introduced or not, and if there be no finding on a material issue, the judgment cannot be supported.

Judgment reversed, and cause remanded for a new trial.

Mr. Chief Justice Wallace did not express an opinion.  