Opinion
Cooke s&sCooke, Reno, for respondent.
PER CURIAM.
Our original order in this case was for the issuance of a writ of mandamus to compel respondent court to assume jurisdiction after it had erroneously divested itself of jurisdiction by an order quashing service of summons. Respondent has filed a petition for rehearing, and has since filed a supplement and a second supplement thereto. It is now contended that we were in error in reciting: 'The order quashing service is not appealable. N.C.L. 1929, sec. 9385.60.' In support of such contention respondent cites State ex rel. Fowler v. Moore, 46 Nev. 65, 207 P. 75, 22 A.L.R. 1101; Tiedemann v. Tiedemann, 35 Nev. 259, 129 P. 313; Klepper v. Klepper, 51 Nev. 145, 271 P. 336; and City of Los Angeles v. Eighth Jud. Dist. Court, 58 Nev. 1, 15, 67 P.2d 1019, 1022. The sentence quoted was not necessary to the opinion and decision, and under the cases above cited, is not true in all cases. It is, therefore, ordered stricken from the opinion.
Respondent asserted, in answer to the writ, that the order quashing service was an appealable order as an order after judgment, but we pointed out that there was no judgment. Respondent now contends for the first time, in his supplemental memorandum, that it was appealable as a final order under the Tiedemann and other cases. This court will not consider a point raised for the first time on motion for rehearing. Gamble v. Silver Peak Mines, 35 Nev. 319, 133 P. 936. A fortiori, it will not consider a point raised for the first time in a supplement to a petition for rehearing. Respondent seeks to avoid this situation by his assertion that such rule does not apply to jurisdictional points. However, while the availability of a remedy by appeal may be taken into consideration in determining the propriety of granting a writ of mandamus, it is not jurisdictional. As in cases involving applications for a writ of prohibition, remedy by appeal is not always speedy or adequate. International Life Underwriters, Inc. v. Second Judicial District Court, 61 Nev. 42, 113 P.2d 616, 115 P.2d 932; Bell v. First Judicial District Court, 28 Nev. 280, 81 P. 875, 1 L.R.A.,N.S., 843, 113 Am.St.Rep. 854, 6 Ann.Cas. 982.
The original opinion, modified as above, may stand, and the petition for rehearing is denied.
On Costs
Respondent has filed an objection to a $10 item in petitioner's cost bill. Although the objection is addressed to the court, it is not before us as it has not been heard by the clerk. Rule VI, subd. 3, Rules of the Supreme Court. Respondent has also moved that we modify our former decision allowing petitioner his costs, by disallowing the same, by reason of respondent's official status. This court has no many occasions allowed costs in such cases. It may be reasonable to presume that in most cases they have been paid by the real party in interest and not by the respondent court or the respondent judge. The motion is denied.
BADT, C. J., and EATHER and MERRILL, JJ., concur.