Wayne Earl Billingsley v. Judge Harold A. Kyser John O'BannOn, 691 F.2d 388 (8th Cir. 1982). · Go Syfert
Search
Wayne Earl Billingsley v. Judge Harold A. Kyser John O'BannOn, 691 F.2d 388 (8th Cir. 1982). Cases Citing This Book View Copy Cite
20 citation events (7 in the last 25 years) across 9 distinct courts.
Strongest positive: Bailey v. Easley (ared, 2021-01-26)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Bailey v. Easley
E.D. Ark. · 2021 · confidence medium
Id. at 2-3 (citing Broadnicki v. City of Omaha, 75 F.3d, 1261 , 1266 (8th Cir. 1996); Billingsley v. Kyser, 691 F.2d 388, 389-90 (8th Cir. 1982) and Geter v. Fortenberry, 648 F.2d 1550 , 1558 (5th Cir. 1988)).
discussed Cited as authority (rule) Dalenko v. Stephens
E.D.N.C. · 2013 · confidence medium
See Chu, 771 F.2d at 81 (“There is no [absolute] immunity, of course, if the judge undertakes to act in an area where he has no subject matter jurisdiction, but it is immaterial that his challenged judicial act may have been unauthorized by the laws which govern his conduct.”); Billingsley v. Kyser, 691 F.2d 388, 389-90 (8th Cir.1982)(finding that although a state court judge may have lacked authority to amend a criminal defendant’s sentence once the defendant filed a notice of appeal, the judge nevertheless “acted within his judicial capacity and within his general jurisdiction” bec…
discussed Cited as authority (rule) John Chism Bail Bonds, Inc. v. Pennington (2×) also: Cited "see"
E.D. Ark. · 2009 · confidence medium
As to the former, a “judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances.” Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982) (per curiam).
discussed Cited as authority (rule) JOHN CHISM BAIL BONDS, INC. v. Pennington (2×) also: Cited "see"
E.D. Ark. · 2009 · confidence medium
As to the former, a "judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances." Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982) (per curiam).
discussed Cited as authority (rule) VanHorn v. Nebraska State Racing Commission
D. Neb. · 2004 · confidence medium
"As to the former, a 'judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances.' Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982) (per cu-riam).
discussed Cited as authority (rule) Cecil E. Hicks v. Honorable Doyle E. Blythe, Associate District Judge, Pushmataha County, State of Oklahoma
10th Cir. · 1997 · confidence medium
Therefore, defendant's actions were, at most, taken in excess of his authority, not in the complete absence of all jurisdiction, see Duty, 42 F.3d at 463 ; Billingsley v. Kyser, 691 F.2d 388, 389-90 (8th Cir.1982).
discussed Cited as authority (rule) Hicks v. Blythe
10th Cir. · 1997 · confidence medium
Therefore, defendant’s actions were, at most, taken in excess of his authority, not in the complete absence of all jurisdiction, see Duty, 42 F.3d at 463 ; Billingsley v. Kyser, 691 F.2d 388, 389-90 (8th Cir. 1982).
discussed Cited as authority (rule) James A. Duty Opal Duty v. City of Springdale, Arkansas Stanley Ludwig, Individually and in His Capacity as Municipal Judge of Springdale, Arkansas (2×) also: Cited "see"
8th Cir. · 1995 · confidence medium
As to the former, a “judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances.” Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982) (per curiam).
discussed Cited as authority (rule) King v. Myers
4th Cir. · 1992 · confidence medium
Bradley v. Fisher, 13 Wall. at 351 ; Stump v. Sparkman, 435 U.S. at 356 , 98 S.Ct. at 1104-05 ; Pressly v. Gregory, 831 F.2d at 517 ; Holloway v. Walker, 765 F.2d 517, 524 (5th Cir.), cert. denied, 474 U.S. 1037 , 106 S.Ct. 605 , 88 L.Ed.2d 583 (1985); Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982).
discussed Cited as authority (rule) King v. Myers
4th Cir. · 1992 · confidence medium
Bradley v. Fisher, 13 Wall. at 351 ; Stump v. Sparkman, 435 U.S. at 356 , 98 S.Ct. at 1104-05 ; Pressly v. Gregory, 831 F.2d at 517 ; Holloway v. Walker, 765 F.2d 517, 524 (5th Cir.), cert. denied, 474 U.S. 1037 , 106 S.Ct. 605 , 88 L.Ed.2d 583 (1985); Billingsley v. Kyser, 691 F.2d 388, 389 (8th Cir.1982).
cited Cited "see" Hays v. First National Bank
D. Colo. · 1984 · signal: see · confidence high
See Billingsley v. Kyser, 691 F.2d 388 (8th Cir.1982); Verner v. State of Colorado, 533 F.Supp. 1109 (D.Colo.1982).
Retrieving the full opinion text from the archive…
Wayne Earl BILLINGSLEY, Appellant,
v.
Judge Harold A. KYSER; John O’Bannon, Appellees
82-1701.
Court of Appeals for the Eighth Circuit.
Oct 20, 1982.
691 F.2d 388
John Ashcroft, Atty. Gen., Kelly Klopfenstein, Asst. Atty. Gen., Jefferson City, Mo., for appellees., R. Gregory Gore, R. Gregory Gore, P. C., Kansas City, Mo., for appellant.
Heaney, Ross, Henley.
Cited by 17 opinions  |  Published
PER CURIAM.

Plaintiff, who was convicted for rape, appeals the dismissal of his complaint against a Missouri circuit court judge and a prosecuting attorney, in which he alleged that the defendants violated 42 U.S.C. § 1983 by amending his sentence, even though they knew that because the appeal of his conviction was pending, the court had no jurisdiction to amend his sentence. He asserts that in reliance on the invalid amendment, he dismissed his appeal, with the result that he lost the right to appeal and was incarcerated according to the original sentence. [1] The district court [2] dismissed the complaint on the grounds of judicial and prosecutorial immunity. We affirm.

It is established that a judge is immune from liability for damages if he had jurisdiction over the subject matter and if he acted in his judicial capacity, Birch v. Mazander, 678 F.2d 754, 755 (8th Cir. 1982), and that prosecutors are similarly protected by a derivative form of immunity. Duba v. McIntyre, 501 F.2d 590, 592 (8th Cir. 1974), cert. denied, 424 U.S. 975, 96 S.Ct. 1480, 47 L.Ed.2d 745 (1976). Plaintiff contends that because jurisdiction was vested in the appellate court at the time of the purported sentence amendment, the judge was acting without jurisdiction and therefore is not entitled to judicial immunity. However, as explained by the district court, there is a distinction between acts done in excess of jurisdiction, in which case judicial immunity still applies, and acts done in complete absence of subject-matter jurisdiction, in which case a judge may be deprived of judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978). A judge acts in excess of jurisdiction if the act complained of is within his general power of jurisdiction but is not authorized because of certain circumstances. Id.; Duba v. McIntyre, 501 F.2d at 592.

In the present case, plaintiff concedes that Judge Kyser was empowered to rule on criminal matters, including motions to amend sentence. Thus, even though Judge Kyser may have lacked authority to amend plaintiff’s sentence because of the pending appeal, we agree with the district court that the judge, in ruling on plaintiff’s motion to amend sentence, acted in his judicial[*390] capacity and within his general jurisdiction. See Birch v. Mazander, 678 F.2d at 756.

We therefore conclude that the district court properly dismissed plaintiff’s complaint on the grounds of judicial and prosecutorial immunity.

Affirmed.

1

. The district court notes that plaintiff apparently no longer is incarcerated.

2

. The Honorable Howard F. Sachs, United States District Judge, Western District of Missouri.