In Re William D. Zack and Jacqueline S. Zack, Debtors.william D. Zack and Jacqueline S. Zack, Plaintiffs-appellants, v. First of America Bank--southeast Michigan, N.a., Defendant-appellee, 4 F.3d 995 (6th Cir. 1993)Annotate this Case
Aug. 18, 1993
Before MILBURN, RYAN and BATCHELDER, Circuit Judges.
This matter is before the court upon consideration of First of America Bank's motion, filed pursuant to Sixth Circuit Rule 8(a) (1), to dismiss this appeal for lack of jurisdiction.
William and Jacqueline Zack seek to appeal from orders entered by the district court under two case numbers. It appears from the record that a final order in district court Case No. 91-74432 was signed on July 20, 1992, and entered on the docket on July 22, 1992. The notice of appeal as it applies to case No. 91-74432 was filed on February 8, 1993, and is over five months late. Fed. R. App. P. 4(a) and 26(a). Inasmuch as no time-tolling motions are contained in the record, the notice of appeal is untimely.
The failure of an appellant 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. Baker v. Raulie, 897 F.2d 1369, 1398 (6th Cir. 1989) (per curiam).
In contrast, a final order in district court case number 92-74780 was not filed until January 22, 1993. Thus, the February 8, 1993 notice of appeal as it applies to that case, is timely. Therefore, this court has the jurisdiction to consider the merits of the issues arising in the district court under case No. 92-74780.
Accordingly, First of America Bank's motion to dismiss is granted in part and denied in part. The motion to dismiss is granted with regard to issues arising from Case No. 91-74432, and denied with regard to issues arising from Case No. 92-74780.