Unpublished Dispositionhorace Jones, Petitioner-appellant, v. Herman C. Davis, Warden, Respondent-appellee, 779 F.2d 51 (6th Cir. 1985)

This matter is before the Court upon consideration of the appellant's response to this Court's May 29, 1985, show cause order. The appellee has replied to the response and appellant has responded to the appellee's reply.

A review of the record indicates that the judgment was entered June 28, 1984. On July 9, 1984, appellant filed a Rule 59(e), Federal Rules of Civil Procedure, motion for reconsideration of the judgment. No certificate of service was filed. On July 17, 1984, appellant filed a notice of appeal which was docketed as appeal number 84-5691. The district court denied reconsideration on August 24, 1984. Appellant filed a notice of appeal on September 12, 1984, from the August 24, 1984, order. The September 12 notice of appeal was docketed as appeal number 84-5850.

Appellant indicates in his response to the show cause order that the motion for reconsideration was timely served on July 9, 1984. Counsel for the appellee cannot refute appellant's allegation. This Court has determined that the motion for reconsideration be treated as timely served. The motion for reconsideration, therefore, tolled the appeals period. Rules 4(a) (4), Federal Rules of Appellate Procedure, and 59, Federal Rules of Civil Procedure.

It is ORDERED that the show cause order entered in 84-5850 be and hereby is discharged.

It is further ORDERED that appeal number 84-5691 be and hereby is dismissed. Rule 9(d) (1), Rules of the Sixth Circuit. That premature appeal was filed while the motion for reconsideration was pending and the appeals period tolled pursuant to Rule 4(a) (4), Federal Rules of Appellate Procedure. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982).