Unpublished Dispositionwalter K. Johnson, Plaintiff-appellant, v. Hardy Green, Defendant-appellee, 811 F.2d 606 (6th Cir. 1986)Annotate this Case
Dec. 8, 1986
Before ENGEL, JONES and NELSON, Circuit Judges.
This matter is before the Court upon consideration of appellee's motion to dismiss and appellant's response in opposition.
It appears from the record that the final order was entered on September 25, 1986, and the notice of appeal was filed on October 28, one day late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. Neither Rule 6(e), Federal Rules of Civil Procedure, Nor Rule 26(c), Federal Rules of Appellate Procedure, extends the appeals time by three additional days because the order was mailed by the district court clerk. The time for filing a notice of appeal begins to run from date of entry of the judgment, not its receipt. Welsh v. Elevating Boats, Inc., 698 F.2d 230, 232 (5th Cir. 1983); Sofarelli Associates, Inc. v. United States, 716 F.2d 1395 (Fed. Cir. 1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kurtenbach, 525 F.2d 1179 (8th Cir. 1975). Also, mailing of a notice of appeal does not constitute filing. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a) is a 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) specifically provides that this Court cannot enlarge the time for filing a notice of appeal.
It is ORDERED that the motion to dismiss be and hereby is granted and the appeal dismissed.