OpenJurist

770 F2d 165 Gene Favors v. Dale Foltz Perry Johnson and Robert Browns

770 F.2d 165

GENE T. FAVORS, PLAINTIFF-APPELLANT,
v.
DALE FOLTZ, PERRY JOHNSON, AND ROBERT BROWN, DEFENDANTS-APPELLEES.

NO. 85-1239

United States Court of Appeals, Sixth Circuit.

7/19/85

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

E.D.Mich.

APPEAL DISMISSED

ORDER

BEFORE: JONES, CONTIE and WELLFORD, Circuit Judges.

1

This matter is before the Court upon consideration of the appellant's response to this Court's show cause order.

2

It appears from the record that the judgment was entered December 6, 1984. A notice of appeal was erroneously received from the appellant by this Court and it was forwarded to the district court in Grand Rapids, Michigan, on December 13, 1984. A second notice of appeal in the above case was erroneously received from the appellant by this Court on March 15, 1985, and it was forwarded to the district court in Ann Arbor, Michigan, for filing as required by Rule 4(a)(1), Federal Rules of Appellate Procedure. The notice of appeal was filed in Ann Arbor on March 19, 1985. The notice of appeal was 67 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The March 15, 1985, notice of appeal was docketed in the Court as appeal number 85-1239.

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. 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 Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

4

A review of this Court's files and the response of the appellant indicates that his first notice of appeal was erroneously received in this Court on December 13, 1984. This Court forwarded the notice of appeal to the district court in Grand Rapids for filing on December 13, 1984, as provided by Rule 4(a)(1), Federal Rules of Appellate Procedure. The notice of appeal, however, should have been filed in Ann Arbor, Michigan. Appellant attempted to timely file a notice of appeal on December 13, 1984, from the judgment entered December 6, 1984.

5

It is ORDERED that appeal number 85-1239 be dismissed for lack of jurisdiction due to late notice of appeal. Rule 9(d)(1), Rules of the Sixth Circuit.

6

It is further ORDERED that the district court correct its records to reflect March 15, 1985, as the file date of the notice of appeal as required by Rule 4(a)(1), Federal Rules of Appellate Procedure. Rule 10(e), Federal Rules of Appellate Procedure.

7

It is further ORDERED that the district court in Ann Arbor file on December 13, 1984, appellant's notice of appeal which was originally received in this Court on December 13, 1984, and erroneously transmitted to the district court in Grand Rapids. The Clerk of this Court shall forward a copy of the December 13, 1984, notice of appeal to the district court for filing as required by Rule 4(a)(1), Federal Rules of Appellate Procedure.