Unpublished Dispositionroger Justice, Plaintiff-appellant, v. James Murphy, Judge; Robert Bulford; James Mccarthy;richard Kutuchief; Robert Oldham; Thomasciccolini, Defendants-appellees, 889 F.2d 1087 (6th Cir. 1989)

Before MERRITT, Chief Judge, WELLFORD, Circuit Judge and ROBERT E. DeMASCIO, Senior 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 judgment of the district court was entered July 20, 1989. A Fed. R. Civ. P. 59(e) motion to vacate was served on July 28, 1989, within ten days of entry of judgment and tolled the appeals period. See Fed. R. App. P. 4(a) (4). The August 14, 1989, notice of appeal filed prior to the August 17, 1989, ruling denying the Rule 59(e) 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(e) 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.