Unpublished Dispositionunited Feature Syndicate, Inc., Plaintiff-appellee, v. Spree, Inc.; Supershirts, Inc.; Top Lease, Inc.; Lawrencekleiman; and Neil Kleiman, Defendants-appellants, 779 F.2d 53 (6th Cir. 1985)

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 thereto.

It appears from the record that the judgment was entered December 28, 1984. A motion for modification of judgment was served and filed on January 9, 1985. This untimely served Rule 59, Federal Rules of Civil Procedure, motion failed to toll the appeals period. Rule 4(a) (4), Federal Rules of Appellate Procedure. The motion was denied by order entered April 17, 1985. The April 26, 1985, notice of appeal was taken from the December 28, 1984, judgment and April 17, 1985, order denying motion for new trial and modification of judgment.

This Court lacks jurisdiction in this appeal. An order denying a Rule 59, Federal Rules of Civil Procedure, motion is not a final judgment or appealable order. Carpenter v. Klosters Rederi, 604 F.2d 11 (5th Cir. 1979). The notice of appeal as it applies to the judgment was 88 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. 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 Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed.