889 F. 2d 1086 - Cantrell
889 F2d 1086 Cantrell
889 F.2d 1086
O'Connell W. CANTRELL; Elva Cantrell, Plaintiffs-Appellants,
v.
Ova CANTRELL; Hubert Wright; Walter Wright, Jr.; Hatfield
Wright; Mitchell Wright; Leonard Smith; Coy Wright;
Larry Heton; W.B. Wright; Philip Wright Cemetary; Nora
Wright, Defendants-Appellees.
No. 89-5521.
United States Court of Appeals, Sixth Circuit.
Nov. 14, 1989.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KENNEDY and RYAN, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.
ORDER
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This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction. The appellants have failed to respond.
A review of the record indicates that the district court's decision was entered November 29, 1988. A Fed.R.Civ.P. 59(e) motion for reconsideration was served on December 6 and filed December 9, 1988. This motion served within ten days of the decision tolled the appeal period pursuant to Fed.R.App.P. 4(a)(4). The motion for reconsideration was denied by order entered January 27, 1989. A second motion for reconsideration was served February 13 and filed February 16, 1989. This successive motion did not toll the appeals period. See Mullen v. Household Bank-Federal Sav. Bank, 867 F.2d 586, 587 n. 1 (10th Cir.1989) (per curiam); Reed v. Toledo Area Affirmative Action Program, 715 F.2d 253, 254 (6th Cir.1983) (per curiam), cert. denied, 469 U.S. 1221 (1985). The second motion for reconsideration was denied March 27, 1989, and appellants appealed from that order on April 24, 1989. An order denying a Fed.R.Civ.P. 59 motion for reconsideration is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir.1976); Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir.1973). The April 24, 1989, notice of appeal cannot be treated as an appeal from the November 29, 1988, decision because it was not filed within the appeal period prescribed by Fed.R.App.P. 4(a).
It is ORDERED that the motion to dismiss be granted and the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 8, Rules of the Sixth Circuit.