898 F.2d 155: Unpublished Dispositioneugene Syzmanski, Plaintiff-appellant, v. Dennis Peppler, Defendant-appellee

United States Court of Appeals, Sixth Circuit. - 898 F.2d 155

March 12, 1990


Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

1

ORDER

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This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

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A review of the record indicates that the judgment was entered November 15, 1989. The appellant filed a Fed.R.Civ.P. 59 motion to alter or amend in the district court on November 17, 1989, which was within ten days of entry of judgment as computed pursuant to Fed.R.Civ.P. 6(a). Such motion tolled the appeal period. See Fed.R.App.P. 4(a)(4); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988). A notice of appeal was filed November 17, 1989. 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 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). The district court has not yet ruled on the motion to alter or amend, and the time to appeal will not begin to run until such ruling.

4

Accordingly, 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.