The opinion
On Petition for a Rehearing.
Woods, J.
— Itmaybe conceded, as claimed by counsel for the appellant, that, in the case at bar, the only issue was this: Is said Walls a voter and a person of good moral character ? and that the inquiry had reference to the date of the motion for readmission, and of the hearing thereon.
The burden of this issue was on the appellant; and this was so, even if there had been no resistance to the application. It is not apparent that the issues could have been so formed, or such an admission made, as to relieve him of this burden. All pertinent facts, for and against him, were provable *109 without special petition, plea or reply, and, if any of the facts specially pleaded against, or those found either for or against him, are irrelevant, they constitute only surplusage, immaterial and harmless, on which no available assignment of error can be predicated.
Upon the request of the appellant, the court made a special finding of facts, and stated its conclusion of law thereon. These are set out with sufficient fulness in the original opinion. Whether the appellant was entitled to claim such a finding, we need not decide. Having requested it, and the court having granted it, the case must be disposed of by the rules applicable to such findings.
Two propositions are now pressed upon our attention: First, that the finding shows that the appellant was a voter and a person of good moral character, and, therefore, entitled to an order for readmission; and, Second, that the finding is defective, in not showing whether he was or was not a person of good moral, character, and that, consequently, a venire de novo should have been granted.
In support of the first proposition, much stress is laid upon the finding, “that, as to all the charges not herein specifically or generally found against the petitioner, the court finds in his favor, and that the charges are not proven;” and counsel say that “among these” (so found in favor of the petitioner) “stands cause 19. The said William B. Walls is not a person of good moral character, but, on the contrary thereof, is a person of bad moral character.”
This part of the finding can not, by any fair interpretation of its terms, and certainly not in the light of all that is specifically found, be construed to embrace said “Cause 19,” which, in fact, is no charge at all, but amounts only to a denial of the petition. It may be, as is claimed, that the facts specially found are mainly itemá of evidence only, and that they relate directly to occurrences and transactions which happened some time ■ before the filing of the petition, *110 but, nevertheless, they were pertinent to the issue. They tend to show the character of the man, and, in the light of ■all that is found, it would be a singular standard, by which it could be claimed that this finding shows the appellant to be a man of good moral character.
The second proposition can not be maintained. In the ■case of Graham v. The State, ex rel., 66 Ind. 386 , the office of a special verdict or a special finding of facts was carefully considered ; and it was there determined that the facts to be stated in such finding or rerdict were those which had been proved on the trial, and none other; that if there were issues in a case, on which no evidence was offered, no finding should be made in reference thereto, and that the issues •concerning which no facts were found should be regarded as not proved by the party on whom was the burden of the issue or issues. This case has been approved and followed in several cases decided at this term. Martin v. Cauble, 72 Ind. 67 ; Vannoy v. Duprez, 72 Ind. 26 ; Stropes v. The Board, etc., 72 Ind. 43 .
There was, before the decision of the case of Graham v. The State, supra, some confusion and conflict in the cases on this subject. See Schmitz v. Lauferty, 29 Ind. 400 ; Cruzan v. Smith, 41 Ind. 288 ; Dehority v. Nelson, 56 Ind. 414 ; Whitworth v. Ballard, 56 Ind. 279 ; Anderson v. Donnell, 66 Ind. 150 , and the cases referred to. But these cases should be deemed modified or overruled so far as inconsistent with the doctrine now settled, that it is not the office of a special verdict or finding to find expi’essly upon the issues, but only to find the facts proven within the issues. The inevitable corollary proposition is, that, if the special finding or verdict is silent in reference to any fact or issue, such silence is not an omission apparent on the record, which can be ground for granting a venire de novo. If in fact there was proof pertinent to any issue on which the court ought to have found facts which are not found, the remedy *111 must be by a motion for a new trial, on the ground that the finding is contrary to law. If pertinent and material facts are proven, but the court does not find upon them, and ■thereby impliedly finds that they are not proven, the finding in such respect is clearly contrary to law, and there is good ■cause for a new trial, but not for a new venire.
The application of this rule to the case under consideration is plain. If, as counsel so vigorously contend, the finding of facts does not show affirmatively that the appellant was a man of good moral character, nor the contrary, it is equivalent to an adverse finding in that respect; and we certainly can not say on the evidence that the finding is wrong.
Petition overruled, with costs.