Unpublished Dispositiondanny Dean Yost, Plaintiff-appellant, v. Steven Smith, Warden, Dewey Sowders, Warden, Barbara W.jones, Ruth Ryan, Governor Wallace Wilkerson,defendants-appellees, 920 F.2d 934 (6th Cir. 1990)

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 final order of the district court was entered September 17, 1990. A motion for rehearing seeking reconsideration of the decision was served September 20, 1990, and filed September 21, 1990. Such motion served within ten days of entry of the final decision is properly treated as a time-tolling Fed. R. Civ. P. 59(e) motion. White v. New Hampshire Dep't of Empl. Sec., 455 U.S. 445, 451 (1982); Moody v. Pepsi-Cola Metropolitan Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990); United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir. 1989) (per curiam). A notice of appeal was filed October 2, 1990. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a Fed. R. Civ. P. 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court by order entered October 5, 1990, denied rehearing and advised Yost that he had thirty days in which to file a notice of appeal.

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.