(concurring in part, dissenting in part).
I agree with the majority opinion that the trial court did not err in granting the two mistrials.
In Schaub v. Job, 335 N.W.2d 568 (S.D.1983), we held that attorney fees could be awarded as a part of the costs imposed under SDCL 15-17-25 as a condition precedent to granting a continuance based upon plaintiffs’ unpreparedness for trial. I would hold that the situation before us is sufficiently analogous to that which existed in Schaub to justify the award of attorney fees.
The matter of imposing the costs of the two jury panels presents a much closer question. SDCL 15-17-34, which we adopted as a court rule in 1980, is not a legislative grant of power to impose jury costs in cases where the parties settle shortly before trial, but rather reflects this court’s determination that the award of costs in that situation constitutes a proper exercise of judicial power. I would adopt the reasoning of the Wisconsin Supreme Court as expressed in Jacobson v. Avestruz, 81 Wis.2d 240, 260 N.W.2d 267 (1977), and would hold that the trial court did not exceed its inherent authority in imposing the costs of impaneling the first jury. I would hold that the trial court should not have imposed the costs of impaneling the second jury, however, inasmuch as the circumstances that necessitated granting the motion for the second mistrial were not nearly as flagrant as those requiring the first mistrial. Cf. Jacobson v. Avestruz, supra.
Among the considerations that compel me to conclude that the trial court had the inherent authority to assess attorney fees and costs is the lack of any other practical sanction. Contempt proceedings, although certainly appropriate in the case of willful disobedience of an order, would have been too heavy a club to swing in the circumstances of the case before us. The imposition of attorney fees and jury costs is a more practical and condign remedy, one that has the effect of making the innocent party — and the county — whole, as well as serving as a deterrent to those who may be tempted to circumvent or exceed the proper bounds of voir dire and witness examination.