Livingston v. . Dunlap

6 S.E. 200, 99 N.C. 268

• Court: Supreme Court of North Carolina
• Decided: February 5, 1888
• Status: Published

Opinion

MerrimoN, J.,

(after stating the case). The Court instructed the jury explicitly that the evidence objected to and the grant to which it referred, turned out in the course of the trial to be immaterial, and that the plaintiffs could recover, if at all, upon an entirely different kind of title, of which there was appropriate evidence. The jury were thus cautioned against the immaterial evidence. It did not in its nature and application tend to mislead them, nor did it in fact so far as appears. If it did so in fact, the appellant should have made this appear in some way.

The admission of immaterial evidence is not always ground for a new trial, even when objected to; it is so only when it is such as may from its nature or application, or both, have the effect to mislead the jury. If it is simply immaterial, ■the party complaining must show that he probably suffered prejudice by it. It wmuld be trifling with serious matters to set aside verdicts and grant new trials because of the admission of evidence on the trial that could not or did not prejudice the losing party. It may be added, however, that the Courts should, as far as practicable, exclude such evidence.

Affirmed.