Unpublished Dispositionrobert W. Mahlerwein, Plaintiff-appellant, v. William R. Stitsinger; Robert E. Fryman; Gregory G. Hall;francie Schiavone; 50 John Does; 50 Jane Does;, 833 F.2d 1012 (6th Cir. 1987)

ORDER

This matter is before the court upon consideration of the appellant's response to this court's August 7, 1987, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late filed notice of appeal. This court notes that its order of August 7, 1987, incorrectly set forth the date of the filing of appellant's notice of appeal as July 17, 1987. The correct date of the filing of appellant's notice of appeal is July 7, 1987. Appellant alleges a conspiracy on the part of the court, and further alleges that the filing date requirement abrogates the United States Constitution.

It appears from the record that judgment was entered by the district court on May 13, 1987. A Fed. R. Civ. P. 59(e) motion was served on May 29, 1987, and filed on June 1, 1987. This motion was not served within the ten day period prescribed by Fed. R. Civ. P. 59(e) as computed by Fed. R. Civ. P. 6(a), and failed to toll the appeals period. Fed. R. App. P. 4(a) (4). Reconsideration was denied by the district court on June 9, 1987. The notice of appeal filed on July 7, 1987 was twenty-five days late. Fed. R. App. P. 4(a) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal. The time for filing a notice of appeal begins to run from the date of entry of the judgment, not its receipt. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

Accordingly, it is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.