905 F. 2d 1539 - United States v. Lots and

Before KRUPANSKY and ALAN E. NORRIS, Circuit Judges; and WENDELL A. MILES, Senior District Judge*.

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction. The appellant has not responded.

A review of the record indicates that the judgment and order of sale was entered April 2, 1990. A motion to vacate the judgment was served on April 6, 1990. The notice of appeal was filed on April 16, 1990. The motion to vacate the judgment was declared null and void on May 8, 1990.

A motion which seeks reconsideration of a judgment and which is served within ten days of entry of a judgment is properly construed as a time-tolling Fed.R.Civ.P. 59(e) motion. The motion to vacate was served within ten days of entry of the judgment and tolled the appeal period. See Fed.R.App.P. 4(a)(4); Osterneck v. Ernst & Whinney, 109 S.Ct. 987, 992 (1989); Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir.1986); Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668-69 (5th Cir.) (en banc), cert. denied, 479 U.S. 930 (1986). Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The appellant did not file a new notice of appeal after entry of the order denying relief from the judgment.

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.