Opinion by
Beatty, C. J.cl I fully concur in the foregoing opinion so far as it relates to the question of newly discovered evidence.
I also reluctlantly concur in the conclusions arrived at in the latter part of the opinion. But whilst I concur in the result, I wish to say that I think the language contained in the following sentence is too broad, and may hereafter lead to difficulties and embarrassment on the part of both Court and counsel. The sentence to which I allude is as follows: “ We have heretofore held that we will not set aside the findings of the lower Court, or the verdict of a jury, upon the ground that they are not justified or supported by the evidence, unless it be shown that all the material evidence is before us.” (See State v. Bonds, 2 Nev. 265.)
In the case of the State v. Bonds, although the language is used *545“ to justify an appellate Court in setting. aside a verdict upon the ground of insufficiency of the evidence, the record which is presented to it must purport to embody all the material evidence adduced on the trial.” Yet the case in fact went off on the ground, among others, that the record did contain evidence sufficient to justify the verdict; so this first sentence contained a mere dictum not important in the decision of that case.
Our statute, Section 195 of Practice Act, requires a party desirous of a new trial to give notice to the opposite party within two days after the trial of his intention to move for the same; and if intending to rely on affidavits, to file the same within five days after notice of intention to move is served. If the moving party intends to rely on a statement, he shall within the same period make “ a statement of the grounds on which he intends .to rely.” • * * * “ The statement shall contain so much- of the evidence or reference thereto as may be necessary to explain the grounds taken, and no more. Such statement, when containing any portion of the evidence of the case, and not agreed to by the adverse party, shall be settled by the Judge upon notice.”
This statute seems simple enough; one would think it might be followed without difficulty; but every day’s experience shows us that cases are frequently brought before this Court where it is'a question of great difficulty to determine what we may review and what we are excluded from reviewing, by the want of a proper statement. Generally, a party moving for a new trial on the ground that the evidence does not support the verdict or finding of the Court, can without difficulty point out the particular branch of the case in which he thinks the evidence is defective.
Having pointed out the particular defect complained of, he should then say that all the evidence in regard to this point was as follows: giving the oral testimony of the witnesses on the particular point or points, and also referring to such documentary evidence as has any relation to the point; or if there is an entire absence of proof, the statement may simply show that no evidence was introduced in relation to a certain point in the case. Whilst it would be far better that the statement should distinctly show that all the evidence relating to the point relied on for a new trial was contained in the record, *546yet as this statement has to be submitted to the opposite party, and finally settled by the Court if not agreed to, I think 'a liberal construction should be put upon it; and if this Court can see that the point to be relied on has been fairly stated, and an attempt made to state 'the evidence bearing on that point, and especially where amendments have been made by the opposite party, or the statement agreed to as correct, it should conclude that everything material to the point was contained in the record, although there may be no statement that it contains all the evidence, or all the evidence relating to the point relied oh.
The presumption is, that the party wishing to sustain the verdict will insert whatever is deemed material for his side of the case. But perhaps this liberal construction should only be indulged in where the statement shows distinctly the points to be relied on, and thereby gives the opposite party a fair chance to make such emendations as may be proper fairly to present his side of the case.
The statement in this case shows only two grounds to be relied on by appellant: First, newly discovered evidence; and second, “ the insufficiency of the evidence to justify the decision, and that the same is against the law and facts, upon the ground that the power of attorney was never duly acknowledged.”
Now it appears to me, by any fair interpretation of this second point, it can only be held to raise the objection that the evidence was insufficient to support the findings, because of the want of a proper acknowledgment to the power of attorney. If such is the proper interpretation of this objection, then nearly all the statement was surplusage, and it was not necessary for respondents to insert in the statement other evidence, which would have been only incumbering the récord with more irrelevant matter. The evidence should be confined to the point made. The appellant, however, contends that this objection should be treated as if it contained two distinct sentences, the first of which would read as follows: “ The insufficiency of the evidence to justify the decision.” As the sentence is written in the transcript, I think it will hardly bear such a division. If it did, I should say the statement of the evidence wras sufficient to support this point. The statement contains first, the evidence of certain witnesses called by plaintiffs as to the circumstances under *547which the note was executed; then the testimony of certain witnesses called by defendants as to the same circumstances. The testimony of both sets of witnesses shows conclusively and without contradiction among themselves that the note was executed in the name of defendant by one Edward C. Morse ; that Morse, at the time he executed the note, had no power from Winters to execute the same; and that there was not a shadow of consideration for the note. Respondents stipulated that the statement filed by appellants “ shall be used as the agreed statement on motion for a new trial in the cause.”
Had the statement fairly raised the point that the evidence was insufficient to support the finding, then I should have held that this stipulation not only admitted the witnesses named had sworn as stated, but that there was no other material evidence on the same subject which could have benefited respondents by being introduced into the record. But as the statement of the ground on which the appellants intended to rely was so vague and uncertain — so well calculated to mislead and deceive the respondents — I am compelled to acquiesce in the affirmance of the judgment, although it seems highly probable that it is erroneous.