OpenJurist

779 F2d 53 Pearly Wilson v. Nw McMackin

779 F.2d 53

PEARLY L. WILSON, Petitioner-Appellant,
v.
N.W. McMACKIN, Respondent-Appellee.

85-3396

United States Court of Appeals, Sixth Circuit.

10/3/85

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

S.D.Ohio

ORDER

BEFORE: MARTIN, CONTIE and WELLFORD, Circuit Judges.

1

This matter is before the Court upon consideration of the motion of appellant for appointment of counsel.

2

It appears from the record that the judgment was entered April 24, 1985. A motion for rehearing/reconsideration was timely served on April 27, 1985, pursuant to Rule 59(e), Federal Rules of Civil Procedure, and tolled the appeals period. Rule 4(a)(4), Federal Rules of Appellate Procedure. The notice of appeal was filed on May 14, 1985. An order denying reconsideration was entered May 23, 1985.

3

At the time the May 14, 1985, notice of appeal was filed, the motion for reconsideration had not been ruled upon. Rule 4(a)(4), Federal Rules of Appellate Procedure, provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion '. . . shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion . . ..' A timely notice of appeal is mandatory and jurisdictional. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982); Browder v. Director, Department of Corrections, 434 U.S. 257 (1978).

4

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

5

It is further ORDERED that the motion for appointment of counsel be and hereby is denied.