On Petition for Rehearing
JBy the Court,
Norcross, J.:Counsel for respondent in his petition for rehearing expresses the conviction that the decision in this case "foreshadows the breaking down of rules that have long been a part of our law. ” Coming from one whose standing at the bar entitles his expressions to great respect, we have carefully reviewed the opinion with the view of ascertaining whether therein is expressed any new, dangerous, or revolutionary rule.
7. The opinion comports with • the recent decision in Floyd v. Sixth Judicial District Court (No. 2070; see page 349 of this volume), in which, in effect, we held that, when a cause or matter is properly before a court for determination upon the merits, an order to dismiss or to strike is an act in excess of jurisdiction. It is true, in so holding, we ceased to longer follow some precedents in this and other courts, but we were not without *348illustrious precedents in making the change which we are convinced is abundantly supported both in reason and-justice.
8. Before determining the questions involved in the case as affected by the doctrine of waiver, it would, doubtless, have been the better practice to have asked respective counsel to have considered that question, but it would, we think, -be unfortunate if it were an-inflexible rule that a court of last resort, in all cases, could only consider questions actually discussed in the briefs.
9,10. There can be no question, we think, but that the filing of the motion to retax, without reservation, was a waiver of any question of irregularity of service. Unless the waiver itself was waived, the cost bill'andthe motion to retax were regularly before the court. -Under these circumstances an order striking the cost bill was in excess of jurisdiction.
11,12. It may be, as contended by counsel for the respondent, that the plaintiff in the court below waived the waiver, and that the case is within the rule laid down by this court in Iowa M. Co. v. Bonanza M. Co., 16 Nev. 64. The record brought to this court, however, is silent upon the facts that would be controlling upon that point. If the court below had simply entered the order to strike, without stating any reason therefor, there might be ground for contention that all presumptions are in favor of the order, including a presumption that-the waiver was waived. The court, however, expressly put its order upon the ground that there was no proper service of the cost bill, while the record- before us discloses that defendant had-waived service by the filing of a motion to retax.
The court below correctly decided that there had not been a proper service, but that question became immaterial when counsel filed his motion to retax, and could only again become material in the event that the plaintiff waived his right to assert a waiver upon the part of defendant, upon consideration of the motion to strike. (Iowa M. Co. v. Bonanza M. Co., supra.)
*349The order heretofore made annulling the order to strike will stand, but it is conditioned upon the power of the court below to reconsider the question submitted upon the motion to strike with reference to the questions of waiver.
Rehearing denied.