¶1(concurring in part and dissenting in part).
¶2I concur in part and dissent in part.
¶3The majority opinion is correct in concluding the trial court had no authority to award jury costs occasioned by either mistrial. It is further correct in holding the trial court could not assess attorney fees as terms against appellant’s lawyer on behalf of the appellee. It is my opinion, however, that the award of terms for attorney fees of $582.88 to appellee from appellant should be upheld. It is true that unless there is a special statute, attorney fees cannot be assessed as costs. They may be upheld, however, as terms to the opposing party. Schaub v. Job, 335 N.W.2d 568 (S.D.1983); Olesen v. Snyder, 277 N.W.2d *617729 (S.D.1979). See also 66 C.J.S. New Trial § 207 (1960) and cases annotated.