Unpublished Dispositionsamuels A. Keith, Plaintiff-appellant, v. City of Ann Arbor, Officer Watchowski, Ann Arbor Policedepartment, Judge Thomassen, 15th District Michigan Statecourt for the County of Washtenaw, Frank Kelley, Michiganstate Attorney General, Defendants-appellees, 918 F.2d 179 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 918 F.2d 179 (6th Cir. 1990) Nov. 16, 1990

Before KRUPANSKY and MILBURN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


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 indicates that the orders disposing of the action were entered July 13, 1990. The appellant served a Fed. R. Civ. P. 59 motion to alter or amend on July 23, 1990, 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); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988), cert. denied, 109 S. Ct. 2436 (1989). The motion to alter or amend evinces Keith's intent to appeal, and is treated as a notice of appeal. See generally Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 387-88 (9th Cir. 1988). 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, 489 U.S. 169, 173-74 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court has not ruled on the motion to alter or amend.

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.