793 F. 2d 1294 - Morris Watson v. Jefferson County Board of Education and Donald W Ingwerson

This matter is before the Court upon consideration of appellant's response to this Court's order to show cause why the appeal should not be dismissed because of a late filed notice of appeal. Appellee has filed a reply to appellant's response.

It appears from the record that final judgment was entered on June 19, 1985. The motion to reopen and set aside summary judgment pursuant to Rule 59, Federal Rules of Civil Procedure, was untimely served and did not toll the running of the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. The Rule 59 motion was denied on October 8, 1985, because it was untimely. The notice of appeal of October 26, if construed as being an appeal from the June 19 judgment was 98 days late. The appellant's notice of appeal states that it is from the October 8 '(Final) Summary Judgment.' The October 8 order denies the Rule 59 motion and is generally not an appealable order. Carpenter v. Klosters Rederi, 604 F.2d 11 (5th Cir. 1979). Although the October 8 order stated that it is a final and appealable order and there is no just cause for delay, the order is not appealable. See Solomon v. Aetna Life Insurance Co., 782 F.2d 58 (6th Cir. 1986).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Peake v. First National Bank and Trust Co., 717 F.2d 1016 (6th Cir. 1983).

It is ORDERED that the appeal be and hereby is dismissed. Rule 9(d)(1), Rules of the Sixth Circuit.