Unpublished Dispositiongloria Gascon Morris, Plaintiff-appellee, v. Billie C. Morris, Defendant-appellant, 889 F.2d 1088 (6th Cir. 1989)

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD SUHRHEINRICH, District Judge^* .

ORDER

This matter is before the Court on the defendant's response to the show cause order of October 23, 1989.

Judgment was entered for the plaintiff on August 31, 1989. On September 5, 1989, the district court, without any intervening motion by the parties, amended its previous judgment to reflect the appropriate starting date for computation of interest. The defendant filed a motion for relief from that judgment on September 13, arguing that the district court was without authority to amend its judgment sua sponte. While that motion was pending, the defendant filed a notice of appeal. In his response to the show cause order, the defendant states he was not certain whether the motion would suspend the time for appeal of the August 31 order. He wishes by this appeal to preserve his right to challenge the order of August 31.

A timely motion to set aside a judgment can be properly construed as a motion to alter or amend under Fed. R. Civ. P. 59(e). Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 (6th Cir. 1982). Such a motion tolls the time for an appeal, and a notice of appeal filed prior to the disposition of such a motion is of no effect. Fed. R. App. P. 4(a) (4).

It is therefore ORDERED that this appeal be dismissed. Rule 9(b), Local Rules of the Sixth Circuit. This dismissal is without prejudice to the defendant's right to perfect a timely appeal of the judgment of August 31 and the amending judgment of September 5 following disposition of the pending motion for relief.