889 F2d 1089 Watson v. Gardner Bj
889 F.2d 1089
Winslow WATSON, Plaintiff-Appellant,
v.
Mike GARDNER, Sheriff; Keith Waye, Jailer; Jeff Parker,
Deputy; B.J. Richardson, Defendants-Appellees.
Nos. 89-6108, 89-6178.
United States Court of Appeals, Sixth Circuit.
Nov. 15, 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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, WELLFORD, Circuit Judge, and ROBERT E. DeMASCIO, Senior District Judge*.
ORDER
This matter is before the court upon consideration of appellant's motion for appointment of counsel filed in appeal no. 89-6108.
A review of the record indicates that the decision of the district court was entered on August 22, 1989. Appellant filed a motion for new trial and a notice of appeal on August 28, 1989 (appeal no. 89-6108). The response to the motion for new trial was filed September 1, 1989. The Fed.R.Civ.P. 59(b) motion was served within ten days of entry of judgment and tolled the appeal period. See Fed.R.App.P. 4(a)(4). The August 28, 1989, notice of appeal filed prior to the September 6, 1989, order denying 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). On September 11, 1989, appellant filed a notice of appeal from the September 6, 1989, order denying a new trial (appeal no. 89-6178). Although an order denying a new trial is not appealable, the court will treat the appeal as if it was taken from the final judgment. See Pate v. Seaboard R.R., Inc., 819 F.2d 1074, 1077 n. 4 (11th Cir.1987); Champeau v. Fruehauf Corp., 814 F.2d 1271, 1273 n. 1 (8th Cir.1987); Johnson v. University of Wis.--Milwaukee, 783 F.2d 59, 61 (7th Cir.1986).
It is ORDERED that appeal no. 89-6108 be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit. The motion for appointment of counsel in appeal no. 89-6108 is moot; however, the clerk is directed to file that motion in appeal no. 89-6178. The court will consider such motion for counsel in 89-6178 at a later date.
The Honorable Robert E. DeMascio, Senior District Judge for the Eastern District of Michigan, sitting by designation