Unpublished Dispositionjames O. Hinton, Plaintiff-appellee, v. Tom Burke, Defendant-appellant, 816 F.2d 680 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 816 F.2d 680 (6th Cir. 1987) April 16, 1987

Before MARTIN, WELLFORD and MILBURN, Circuit Judges.


Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed.

Appellant filed his notice of appeal from the district court judgment entered against the defendant in a breach of contract action. The district court judgment was entered on December 29, 1986, and the notice of appeal was filed January 30, 1987--two days late. Rule 4(a) (4), Federal Rules of Appellate Procedure. No time-tolling motions were filed; no extension of time was sought or granted.

In response to the show cause order, appellant argues that his notice of appeal was mailed on January 28, 1987, the due date for the notice. The date on which a notice of appeal is mailed cannot cure an untimely filing of the notice. Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir. 1983).

Compliance with Rule 4(a), Federal Rules of Appellate Procedure 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). This appeal was untimely filed and is hereby dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.