930 F.2d 918
Gene T. FAVORS, Plaintiff-Appellant,
Sally LANGLEY, B. Moats, Inspector, Defendants-Appellees.
United States Court of Appeals, Sixth Circuit.
April 10, 1991.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KRUPANSKY and DAVID A. NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
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 indicates that the judgment was entered November 28, 1990. The appellant served a Fed.R.Civ.P. 59 motion to alter or amend on December 3, 1990, 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); Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir.1988), cert. denied, 490 U.S. 1093 (1989). A notice of appeal was filed January 3, 1991. 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, 489 U.S. 169, 173-74 (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 by order entered January 14, 1991. No new notice of appeal has been 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.