Movant predicates her motion for a rehearing, not upon Rule 5 of this court but upon section 2259, R.L. 1915, which provides among other things that "after the argument of any cause, or when the same is submitted on briefs, if the court is of opinion that a certain point or legal proposition is involved which is material to the *Page 159 decision of the case and which has not been raised or argued by counsel on either side, the case shall not be decided on such point or proposition until counsel for both sides have had an opportunity of arguing the same before the court." The movant in her brief contended that the language of the policy, being the language of the insurer, it should in case of ambiguity be taken most strongly against the insurer. The majority held that this rule was not applicable because of a territorial statute (L. 1917, c. 115, s. 50, subd. 3) requiring the inclusion in all policies of life insurance of a clause providing for incontestability after the lapse of two years from their issuance, citing the statute. Whether the language of the incontestability clause was ambiguous and what rules of construction should be applied thereto were material to the decision. That the majority held that the incontestability clause was not ambiguous is immaterial. It considered the point raised and rejoined thereto. The point being material its rejoinder was material. Moreover, its rejoinder was something entirely new. The statute requiring the inclusion in life insurance policies of an incontestability clause was not called to the attention of the court by counsel either in their briefs or upon argument. It was a rejoinder resulting from the industry of the court. Under the circumstances we have a clear case of a point involved which was material to the decision which had not been raised or argued by counsel on either side. The statute is mandatory. The movant is entitled to a rehearing as a matter of right. The motion for a rehearing should be granted. *Page 160