889 F2d 1086 Branham v. Spurgis
889 F.2d 1086
Rodney BRANHAM, Plaintiff-Appellant,
v.
John SPURGIS, Defendant-Appellee.
No. 89-2011.
United States Court of Appeals, Sixth Circuit.
Nov. 20, 1989.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 MERRITT, Chief Judge, KENNEDY, Circuit Judge, and R. ALLAN EDGAR, 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 indicates that the decision of the district court was entered on August 4, 1989. Appellant served a motion for new trial on August 16, 1989. The Fed.R.App.P. 59 motion was served within ten days of entry of judgment as computed pursuant to Fed.R.Civ.P. 6(a) and tolled the appeal period. See Fed.R.App.P. 4(a)(4). The August 28, 1989, notice of appeal filed prior to ruling on the Rule 59 motion is premature. 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 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. Osterneck v. Ernst & Whinney, 109 S.Ct. 987, 990 (1989); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam).
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 R. Allan Edgar, U.S. District Judge for the Eastern District of Tennessee, sitting by designation