Usually this motion is denied if there is a possibility of making a
case, but suppose the judge either through ignorance or to be obliging
should say, "Well, the plaintiff has made out a good case, but if you
ask it, the blood be upon your own shoulders, and I will dismiss the
case." The defendant does not want it dismissed but he has asked for
it and he has got what he asked for. The result is an anomalous
situation. The case will undoubtedly be reversed and he will be
mulcted in costs for being compelled to ask, because of the formalism
of the court procedure, for what he did not want.
At the end of the defendant's case, when both sides have rested, the
defendant again moves to dismiss. Here again it is a formal motion,
which he may not altogether mean, but which the lawyer often makes as
a matter of form. If the judge really believes there is not enough
evidence to let the case go to the jury, he ought to say so without
the necessity of a motion. Suppose there is not, he dismisses the case
"on the merits" and the trial is over. But suppose there is and the
judge does not know his business and the fine point of law is not
entirely clear to his Honor, and he makes a mistake and the case is
dismissed.
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