828 F. 2d 19 - Perotti v. Seiter

Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and WISEMAN, Chief United States District Judge.*

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record indicates that the judgment of the district court was entered on January 28, 1987. A Fed. R. Civ. P. 59(e) motion was served on February 4, and filed on February 10 and February 11. This motion was served within the ten day period prescribed by Fed. R. Civ. P. 59(e) as computed by Fed. R. Civ. P. 6(a), and tolled the appeals period. Fed. R. App. P. 4(a)(4). A notice of appeal was filed February 10, 1987 (appeal number 87-3154). The Rule 59(e) motion was denied on April 3, and a new notice of appeal was filed on April 21, 1987 (appeal number 87-3380).

This court does not have jurisdiction in appeal number 87-3154. Fed. R. App. P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion 'shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion . . ..' A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

It is ORDERED that appeal number 87-3154 be dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The dismissal of appeal number 87-3154 does not affect the pendency of appeal number 87-3380.