Unpublished Dispositionrodney Branham, Plaintiff-appellant, v. John Spurgis, Defendant-appellee, 889 F.2d 1086 (6th Cir. 1989)

Before MERRITT, Chief Judge, KENNEDY, Circuit Judge, and R. ALLAN EDGAR, District Judge^* .

ORDER

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 decision of the district court was entered on August 4, 1989. Appellant served a motion for new trial on August 16, 1989. The Fed. R. App. P. 59 motion was served within ten days of entry of judgment as computed pursuant to Fed. R. Civ. P. 6(a) and tolled the appeal period. See Fed. R. App. P. 4(a) (4). The August 28, 1989, notice of appeal filed prior to ruling on the Rule 59 motion is premature. 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 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. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).

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