898 F.2d 153
Terry Dwight BARBER, Plaintiff-Appellant,
v.
Joe JONES, Sheriff of Lake County, et al., Defendants-Appellees.
No. 89-6577.
United States Court of Appeals, Sixth Circuit.
March 12, 1990.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before KENNEDY and RYAN, Circuit Judges, and GEORGE C. SMITH, District Judge*.
ORDER
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 before the court indicates that the judgment was entered November 22, 1989. The appellant served a Fed.R.Civ.P. 59 motion to alter or amend on December 4, 1989, 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); McMahon v. Libbey-Owens-Ford Co., 870 F.2d 1073, 1078 n. 1 (6th Cir.1989) (per curiam). A notice of appeal was filed December 8, 1989. 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, 109 S.Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court denied the motion to alter or amend on December 14, 1989. No new notice of appeal was filed.
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.
The Honorable George C. Smith, U.S. District Judge for the Southern District of Ohio, sitting by designation