dissenting from the decision of the majority of the court, delivered the following opinion:
It is not necessary to resort to the poll-books of the election of August, 1863, incorporated as part of the evidence as certified by the circuit judge, nor to Leeman’s certificate of election, signed by the county judge and sheriff, and made an exhibit in his answer, but not read as evidence, to show that Leeman was the actual incumbent, regularly installed into the office of county court clerk of McCracken county, when the order of the county court was made declaring the said office vacant, predicated on the judgment of the contesting board; also, the order appointing Hinton to fill said vacancy.
At page 46, record, and as part of the bill of exceptions, signed by the circuit judge, is this statement: “ also, the defendant desired to have regarded as read all the proceedings and the evidence in the case of Spence and King vs. J. K. Leeman contesting his right to the office, B. J. Hinton objecting to its competency; but it was agreed the same might be considered as read so far, and only so far, as the same is compe*45tent and relevant. And as a part of the proceedings and evidence before the contesting board, this statement is found at page 61, record, to-wit: “ Leeman then offered the following minute book of county court as to Leeman’s qualifications as county court clerk, bond, &c. (page 8; the bond does not appear in the minutes or on file), a copy furnished. See page 641.” Now, take all in the brackets as the statement of the clerk, which doubtless it is, and for the minutes reference is made to page 8, with the statement that bond was not on file, fyc.
By turning to page 8 of the record, this statement and order is found: “ The order of court marked B, mentioned in the answer, reads as follows : ‘ Monday, September the 7th, 1863, called court.
‘ J. K. Leeman produced his certificate of election to the office of county court clerk of McCracken county, Kentucky, and also a certificate of qualification from Hon. C. S. Marshall, judge of the first judicial district, and offered for his securities R. H. Hall, D. C. Peters, and Wm. H. Kidd, and moved to qualify as county court clerk. Thereupon Milton King and James Spence, by their counsel, moved the court to postpone any further action in this court as to the qualification of said Leeman until the board for contested elections for this county should act upon the two cases of King and Spence vs. Leeman for the office of county clerk. The said Leeman asked further time to obtain other sureties on his bond, which was granted him. The said Leeman then presented the names of Albert Bradshaw and R. A. Bacon as additional securities, who, together with the first named securities, were accepted as sufficient by the court. Upon consideration, the court overruled the motion of King and Spence, the two contestants, to which King and Spence excepted, and thereupon said Leeman executed a covenant to the Commonwealth of Kentucky, with R. H. Hall, D. C. Peters, W. H. Kidd, Albert Bradshaw, and R. A. Bacon as his securities, in open court, and took the oaths as required by the constitution and laws of this State.
‘A true copy — attest:
‘J. K. Leeman, Clerk.'1 ”
*46When a record or written instrument has been used as evidence in a case, and a copy is elsewhere to be found in the record, to refer to it by the clerk has been repeatedly held by this court as incorporating it into the bill of exceptions, and is both proper , and convenient as not encumbering the record with unnecessary copies.
As much of this proceeding before the contesting board had been used by Hinton as evidence, and as it is incorporated as part of the evidence before the circuit court, certainly under said agreement, at least, hll that portion which was competent and relevant should be considered by this court. As there was no exception taken to its being read, although objected to, it might well be said it could not be excluded by this court. It has been repeatedly held by this court, before they will revise an error of the circuit court in admitting evidence, that the record must show not only that it was objected to, but that an exception to the ruling of the court had been taken. Objection without exception, or vice versa,- has- been universally held as insufficient. This county court order was part of the evidence presented to the circuit court, is incorporated in the bill of exceptions; is both competent and relevant; it cannot be excluded by this court, whether tested by the principles of law or the terms of the agreement; it should therefore be regarded by this court.
The parol testimony of G. A. Flournoy, called by Hinton, to which there is neither objection nor exception, also establishes that Leeman was the incumbent in said office. He stated: “ That at the called term of his court at which B. J. Hinton was appointed county court clerk, defendant Leeman refused to enter up the orders of court then and there made; and upon his refusal, he, witness, as county judge, recorded in the order book of the court his own orders appointing Hinton clerk, to-wit: *The above order (the appointment of B. J. Hinton) was made by the judge of this court, J. K. Leeman, the incumbent, refusing t> do so, and voluntarily absenting himself.’”
This evidence being introduced by Hinton without objection, is both competent and sufficient to establish that Leeman was *47then the incumbent in the office of county court clerk. Hinton cannot be heard to object to it, as it is his own evidence. It is thus established that Leeman was the incumbent, acting as the county court clerk; that he had been regularly installed into office; had executed the necessary bond, and taken the requisite oaths of office ; that he had the necessary certificate from the circuit judge of his qualifications to discharge the duties of the office. The county court order also recites that he had a certificate of election; but whether this installation into office be by virtue of an election or appointment to fill a vacancy by the county court, matters not.
The county court being of limited jurisdiction, the facts authorizing it to take jurisdiction must appear, and no presumption in favor of its jurisdiction can be indulged.
Its jurisdiction is attempted to be sustained by the judgment of the contesting board; its action was predicated thereon, as shown by the recitals of its orders declaring a vacancy and appointing Hinton to fill the vacancy. But as there was an incumbent, before the county court can declare a vacáncy, some cause known to the law, and recognized by it, must appear in the county court proceedings. The county court cannot at its mere will and pleasure declare a vacancy and proceed to fill it. This court having unanimously agreed that the judgment of the contesting board was illegal and of no effect, it conferred no right on the county court to declare a vacancy.
There are a few specified instances where the law declares a vacancy, on a given state of facts, and authorizes the county court to ascertain those facts, and then, by entering them on the record, to pronounce the judgment of vacancy as declared by the statute.
Such is the case under sec. 5, chap. 91, 2 vol. Stant. Rev. Stat., 340, and as recognized in Stokes vs. Kirkpatric, 1 Met., 144.
But no instance, I apprehend, can be found where the county court can declare a vacancy in the office of clerk without assigning the causes, if, indeed, the court can in any state of case declare such vacancy where there is an incumbent.
The facts showing that there was an incumbent, and no *48vacancy, the order declaring a vacancy and appointing Hinton to it is absolutely null and void, and confers upon him no right or title whatever to the office.
If Leeman holds the office illegally and as an usurper, he is liable to an indictment. See sec. 1, art. 23, 1 vol. Stant. Rev. Stat., p. 407, and Commonwealth vs. Adams, 3 Met., 7, or by sec. 532, Civil Code; “ whenever a person usurps an office or franchise to which he is not entitled by law, an action by ordinary proceedings may be instituted against him, either by the Commonwealth or the party entitled to the office or franchise, to prevent the usurper exercising the office or franchise
This was intended by Hinton as a suit under said section ; but to maintain this action in his name, it is essential for him to show his right to the office. He predicates his right entirely on the action of said contesting board, and the orders of the county court founded thereon; none of which confers on him any right whatever to the office.
It may be proper on a direct proceeding in the name of the Commonwealth, or on an indictment for usurping the office, to inquire into the legality of Leeman’s election; but a mere stranger, without any legal right to the office, cannot in his own name have the legality of the election inquired into ; and Hinton’s suit should be dismissed absolutely.
I dissent from the opinion of the majority, so far as their opinion conflicts with these views.