Unpublished Dispositionterry Dwight Barber, Plaintiff-appellant, v. Joe Jones, Sheriff of Lake County, et al., Defendants-appellees, 898 F.2d 153 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 898 F.2d 153 (6th Cir. 1990) March 12, 1990

Before KENNEDY and RYAN, Circuit Judges, and GEORGE C. SMITH, District Judge* .

ORDER

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

A review of the record before the court indicates that the judgment was entered November 22, 1989. The appellant served a Fed. R. Civ. P. 59 motion to alter or amend on December 4, 1989, which was within ten days of entry of judgment as computed pursuant to Fed. R. Civ. P. 6(a). Such motion tolled the appeal period. See Fed. R. App. P. 4(a) (4); McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1078 n. 1 (6th Cir. 1989) (per curiam). A notice of appeal was filed December 8, 1989. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Rule 59 motion shall have no effect. A timely notice of appeal is mandatory and jurisdictional. Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court denied the motion to alter or amend on December 14, 1989. No new notice of appeal was filed.

Accordingly, it is ORDERED that the appeal be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.

 *

The Honorable George C. Smith, U.S. District Judge for the Southern District of Ohio, sitting by designation