(dissenting). Before the trial began in this case, the trial judge admonished counsel for both parties regarding what conduct he would tolerate from them. He stated:
Now, the matter of counsel's conduct, which has been something that has been disconcerting in part throughout this because you folks have not been able to get along and you've expended a lot of energy going back and forth. As far as introduction of evidence which basically moves toward trial of counsel rather than trial of issues, trial counsel's conduct, if it's alleged to be improper, is best left to complaints *663to the Professional Responsibility Board, and you can hammer it out there. You're not going to let this trial degenerate into a situation of accusation/cross accusation so that what we have is a loss of the issues and a, most likely, reversal or retrial of this case.
The judge's admonition also included warnings about the pretrial examination of witnesses, the examination of witnesses during the trial and a strong warning concerning what would happen if his orders were not followed. "If I see that happening, I am going to come down on whoever does it." He emphasized that he would come down hard if counsels' conduct became an issue in the trial.
In the middle of the examination of a witness, Attorney Walsh violated the judge's rules when he complained to the court, in the presence of the jury, that "[t]here just seems to be a great deal of activity by the defendants during this doctor's testimony." Attorney Walsh later admitted that when he made this comment about the commotion behind him, "I stepped in front of this chair and this table and I pointed directly to counsel's table of the defense counsel at that time." Attorney Walsh may have been referring to two sources of noise — papers being shuffled at the defense counsels' table and also a commotion at the back of the courtroom caused by some of the defendants leaving the courtroom.
The judge agreed with Attorney Walsh that there was too much noise in the courtroom. He asked the bailiff to prevent people from coming in and out of the courtroom. When Attorney Metzner learned of the reason for the commotion at the rear of the courtroom, he responded to Attorney Walsh's conduct and to the trial *664judge's admonishment with potentially disruptive conduct of his own.
The judge excused the jury and later granted the plaintiffs' motion for a mistrial. He also ordered Attorney Metzner to pay the plaintiffs' costs and the county's costs.
I would find that the trial court erroneously exercised its discretion in ordering Attorney Metzner alone to pay all of these costs because the court based its decision on a mistaken view of the evidence. See Krolikowski v. Chicago & N.W. Trans. Co., 89 Wis. 2d 573, 581, 278 N.W.2d 865 (1979). The judge was mistaken when he stated that Attorney Walsh made his declaration about the "activity by the defendants" while he was seated in a chair behind his counsel table. When explaining his decision during the motion hearing, the judge also ignored the fact that Attorney Walsh was pointing at the defense counsel table when he complained about the noise. This view of the facts is incorrect according to Attorney Walsh himself and may have influenced the judge in treating Walsh's accusatory statement as lightly as he did — especially when comparing it to Attorney Metzner's statement.
I find as the court of appeals did that Attorney Walsh violated the judge's rules in the presence of the jury. By doing so, Attorney Walsh initiated the unfortunate incident which resulted in the mistrial.
Attorney Metzner made his statement about Mrs. Tollackson's physical condition in response to Attorney Walsh's accusatory statement about the commotion from the defendants. While Attorney Metzner's conduct may have been improper, it was no more egregious than Attorney Walsh's accusatory statement and conduct.
*665I therefore dissent from the majority's opinion. I agree with the court of appeals that Attorney Metzner should not be responsible for the plaintiffs' costs. However, I would find that the court of appeals erred in holding Attorney Metzner solely liable for the costs of the county. I would hold that Attorney Walsh and Attorney Metzner should both be liable for the county's costs.
I am authorized to state that JUSTICE ROLAND B. Day joins the dissenting opinion.