#### Martin *v.*Pierce Petroleum Corporation.

Opinion delivered October 17, 1927.

1. Appeal and error — objection not preserved in motion for new trial. — The Supreme Court cannot determine whether evidence adduced on a motion to correct a judgment was sufficient to justify correction where appellants objected and excepted to the order correcting the judgment, but did not preserve the objection and exception, either in the supplemental motion for new trial or by amendment to the original motion for new trial.

2. Appeal and error — conclusiveness of court’s finding. — The recital in the judgment by way of amendment that the trial court heard evidence on a question of fact is conclusive where the sufficiency of such evidence is not presented for review by a motion for new trial.

3. Limitation of actions — variance between first and second complaint. — Where a suit brought within the period of limitation styled the plaintiff as the “J. H. Martin Company,” and a second suit was brought within a year by the “Martin Company” on the same cause of action, the second action was not barred since the first action was filed within the statutory period, the variance in the names being immaterial.

Appeal from Arkansas 'Circuit Court, Southern District; *George W. Clark,*Judge;

affirmed.

*T. J. Moher*and *John L. Ingram,*for appellant.

*Sam T.*& *Tom Poe, Floyd Sharp*and *McDonald Poe,*for appellee.

Humphreys, J.

This is an appeal by Fred W. Martin and Ida IT. Martin from a judgment rendered in the circuit court of Arkansas, County on the 24th day of August, 1926, against them, J, TI, Martin and Frank IT, *1162Martin and’each of them, , in. fayor. *\\qf*\\app,elje5e.¡ for $1,123.33 with interest at the rate sjk ¡pe-r. cent. _ per annum from the date of the judgment. ;It was.alleged,in the amended and substituted complaint tha|e said .appellants were members of a partnership .trading’ under, thp name of “The Martin Company,”.to .whom appellee sol.d merchandise in the amount for which suit was brought. The original complaint referred to the partnership as J. H. Martin & Company, and did not allege that Prank II. Martin was a partner.

Appellants filed an answer, denying that they or either of them were partners in the Martin Trading Company. On September 15, 1926, they filed a motion for a new "trial on the ground that no proof was introduced in support of the issue raised, and that for such reason the, judgment was without evidence to sustain it. ’ Oh December 6, 1926, appellee filed a verified motion :i;pr correct the judgment entered on August 24, 1926, so as to show that, before the rendition of said judgment, proof was introduced to establish that appellants were members of the partnership of “The Martin Company.” After hearing testimony, the court corrected the judgment' so as to embrace a recital that proof was introduced before the original judgment was entered to show that appellants were partners doing business as “The Martin Company.”- The court then overruled the motion for a new trial, over appellant’s objection and exception.

Although appellants objected and excepted to the order of the court correcting the judgment, they did not preserve the objection and exception, either in a supplemental motion for a new trial or by amendment to their original motion for new trial. This court therefore cannot determine whether the evidence adduced by appellee on its motion to correct the judgment was sufficient to justify the correction. The rule is that this court will not consider alleged errors of the trial court unless embraced in a motion for a new trial. *Van Hoozer*v. *Hendricks,*143 Ark. 463, 221 S. W. 378.

'The'recital in the judgment, byway of amendment, tb' the .effect-that 'the- trial court'heard-evidbhóé to show *1163íj*-í ! / ¡ ' * ] ; **}' Ü-i-1*! ‘ * i j 1' ‘ f j *¡¡*i»ni j j i ” * '4 (J ! t * ‘■’ü ,»/ I ri * that appellants, .wOrcí;iUQ2pDGrq oí r the partnership doing línslnesNas ^Tlíe 'Martin. ,Oon%anyM/mps.t!b'éiíaióceípWd bj-'tMs-cóüiH'ás''édncliiáiye of 'tná’t f'áct;1 !

Wb’Wbioli/.tbiiik^tbe'Nátíailee ftettfedir'títe^iiyiíiefe ^tT.^H/M’aárffiñ1 *Fqnrjbany,!T 'siddf*‘^Tüé' M&Má’ ’ *.boifíókíí^,s>*ib! :tbé "tVb: homibihints'vis ¿lifficikht; to" !ébair'átíteibzé1'' 'th'é íattef'-éMÍ ■ás';a‘,sép!arate':ári'dí,diktitíct ’ihii't.1'* Bbdhih'ppeil.-laÍLts'iVé!rél :mádé' 'déféiídáíibs _ ib ;thfe flbát,;sñlt' *j&'é -jfeWéfs*the second, -alid"'the"‘saíne1 áe'eoüñt'1 wa's'íhttabhedí:áh“áíh ekhibi-hto botín com^'laínts^.bo'thbáccomitsvhavmghbeen made out against “The Martin Company. Vu.iTfeei fhjst gnit *.-Map'*fiied! within, the- 'statnt.bEy¡'pei’Í0d.í 0-f¡ .'Hpaithtions, and the aQeqnntThquefor.&ivas not ¡'baited^ *c*h->; r.m rr. */■>*

No error appearing, the-'judgmept'lis: affibrnieflifl-;'i<>