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779 F2d 52 William Smith v. United States of America

779 F.2d 52

WILLIAM D. SMITH, Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Appellee.

84-1852

United States Court of Appeals, Sixth Circuit.

10/31/85

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

APPEAL DISMISSED

E.D.Mich.

ORDER

BEFORE: KEITH, KENNEDY and MILBURN, Circuit Judges.

1

This matter is before the Court upon consideration of appellant's response to this Court's September 24, 1985 order to show cause why the appeal should not be dismissed because of a late filed notice of appeal.

2

It appears from the record that final judgment was entered on October 3, 1984 and that the notice of appeal filed on Tuesday December 4, 1984, one day late (the 30th day was Sunday December 2, so it was due to be filed by Monday, December 3). Rules 4(a) and 26(a), Federal Rules of Appellate's Procedure. Appellant in his response states that he placed his notice of appeal in the institutional mail system for delivery to the post office, four days before it was due. Mailing of a notice of appeal does not constitute filing. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a) 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) specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

4

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