the trial court, but as, under the instruction, they might have been made on the motion for a new trial, and as we are not sure they were not, we shall consider them.
We call attention, first, to the fact that the schedule served did not cover all of respondent's property, but only such as he claimed as exempt. The statute requires the debtor to serve a schedule covering all his personal property, but it does not say that his failure to include all such property shall deprive him of his exemptions. It fixes the consequence of such omission when it declares that any property not so included shall not be exempt. Courts cannot declare a more serious consequence. Respondent seems to have understood and intended that all of his personal property not embraced in the schedule should be applied on his debt; and, while it is true that his schedule was not a literal compliance with the statute, yet, under the liberal construction always applied in the matter of exemptions, we think it sufficient in this case. Paddock v. Balgord, (S. D.) 48 N. W. Rep. 840. The officer had already seized, and had in his possession, all of respondent’s personal property. Had the schedule misled the officer as to the amount of respondent's property, and particularly if it had been made with intent to mislead him, an entirely different question would be presented. The demand for exemptions contained in the schedule was a nullity, because at that time there had been no appraisement, and the law requires the selection to be made from the appraisement where it exceeds $1,500 in value. Section 5132, Comp. Laws. But it is undisputed, under the testimony, that the list of property contained in that schedule was taken from the inventory which the sheriff (appellant) had served upon the defendant in the attachment case, (respondent herein.) The appraisement, of course, covered the same property that was in the inventory, and all of it. It might have covered more, but that is immaterial now. Another demand for the same property was made after the appraisement. As we have just said, this property must have been upon the appraisement, and the demand was a sufficient selection from such appraisement. In this connection
