Unpublished Dispositionrichard L. Presser, Plaintiff-appellant, v. Montgomery Ward & Company, Incorporated, an Illinoiscorporation, Defendant- Appellee, 805 F.2d 1036 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 805 F.2d 1036 (6th Cir. 1986)

Oct. 3, 1986


Before WELLFORD, GUY and NORRIS, Circuit Judges.


ORDER

This matter is before the Court upon consideration of the appellee's motion to dismiss and the responses of the appellant.

A review of the certified record indicates that the judgment of the district court was entered January 10, 1986. A time tolling Rule 59, Federal Rules of Civil Procedure, motion to set aside the judgment was served and filed January 21, 1986. Rule 4(a) (5), Federal Rules of Appellate Procedure. The Rule 59, Federal Rules of Civil Procedure, motion was denied on March 25, 1986. Any notice of appeal from the January 10, 1986, judgment was due to be filed on or before April 24, 1986, and any motion for extension of time for filing a notice of appeal was due to be filed on or before May 26, 1986. Rules 4(a) and 26(b), Federal Rules of Appellate Procedure. The notice of appeal filed June 12, 1986, was 49 days late and the motion for extension of time was filed late. No document was filed during the appeals period or extension period which could be construed as a timely filed notice of appeal or timely filed motion for extension of time.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First National Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

It is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed.