Unpublished Dispositionearlene Polyak, Plaintiff-appellant, v. William Boston, Boston Bates & Holt, Defendants-appellees, 905 F.2d 1538 (6th Cir. 1990)

ORDER

This court entered an order on January 30, 1990, directing the appellant to show cause within 21 days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond to this order, but has filed a motion for the court to return "excess" charges.

It appears from the record that the decision was entered on September 18, 1989. Polyak filed a motion for rehearing on September 25, 1989, which tolled the appeal period. The rehearing was denied on October 3, 1989. On October 13, 1989, Polyak filed in the district court a motion for "verification" of the October 3, 1989, order, which the court construed as a Fed. R. App. P. 10(e) motion to correct or modify the record and denied on November 9, 1989. On November 1, 1989, Polyak filed a notice of appeal from the September 18 judgment and the October 3 denial of rehearing. That appeal, No. 89-6414, remains pending. The present notice of appeal, filed on December 15, 1989, is evidently an attempt to appeal both the September 18 judgment and the November 9 order. The former is already before this court on appeal. The time to appeal the latter expired on December 11, 1989, five days before the notice was filed. Fed. R. App. P. 4(a) and 26(a).

The failure to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir. 1983). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

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