Donald R. Kostyu, Plaintiff-appellant, v. Michigan Department of Treasury, Defendant-appellee, 810 F.2d 201 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 810 F.2d 201 (6th Cir. 1986) Nov. 12, 1986

Before KENNEDY, MARTIN and MILBURN, Circuit Judges.


This matter is before the Court upon consideration of the motion of appellee to dismiss the appeal. Appellant has responded to the motion to dismiss.

It appears from the record that the order and judgment of the district court dismissing appellant's action, from which appellant filed notice of appeal, was entered on the district court docket sheet on May 2, 1986. The notice of appeal was filed 1 day late on June 3, 1986. Rules 4(a) (1) and 26(a), Federal Rules of Appellate Procedure.

A timely notice of appeal is mandatory, and the failure of an appellant to timely file notice of appeal deprives an appellate court of jurisdiction. Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984); Peake v. First National Bank and Trust, 717 F.2d 1016, 1018 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically states that this Court may not enlarge the time for filing notice of appeal.

The mailing of a notice of appeal prior to the expiration of the appeal period does not cure an untimely filing of the notice. Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir. 1983).

Accordingly, it is ORDERED that the motion to dismiss be and it hereby is granted and the appeal is dismissed for lack of jurisdiction.