816 F. 2d 680 - Hinton v. Burke
816 F2d 680 Hinton v. Burke
816 F.2d 680
James O. HINTON, Plaintiff-Appellee,
v.
Tom BURKE, Defendant-Appellant.
No. 87-5126.
United States Court of Appeals, Sixth Circuit.
April 16, 1987.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before MARTIN, WELLFORD and MILBURN, Circuit Judges.
ORDER
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Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed.
Appellant filed his notice of appeal from the district court judgment entered against the defendant in a breach of contract action. The district court judgment was entered on December 29, 1986, and the notice of appeal was filed January 30, 1987--two days late. Rule 4(a)(4), Federal Rules of Appellate Procedure. No time-tolling motions were filed; no extension of time was sought or granted.
In response to the show cause order, appellant argues that his notice of appeal was mailed on January 28, 1987, the due date for the notice. The date on which a notice of appeal is mailed cannot cure an untimely filing of the notice. Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir.1983).
Compliance with Rule 4(a), Federal Rules of Appellate Procedure is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983). This appeal was untimely filed and is hereby dismissed. Rule 9(b)(1), Rules of the Sixth Circuit.