920 F. 2d 934 - United States v. Johnson

920 F2d 934 United States v. Johnson

920 F.2d 934

UNITED STATES of America, Plaintiff-Appellee,
v.
William Anthony JOHNSON, Defendant-Appellant.

No. 90-6117.

United States Court of Appeals, Sixth Circuit.

Dec. 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 BOYCE F. MARTIN, Jr. and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

ORDER

1

Defendant, William Anthony Johnson, appeals the order denying his motion to quash a mortgage foreclosure by the Veterans Administration. He has filed a motion in the district court to amend the order and his appeal is being held in abeyance pending the district court's ruling.

2

The district court order denying the defendant's motion to quash was entered on the district court's docket sheet on June 22, 1990. On July 2, 1990, within ten days as computed by Rule 6(a) Fed.R.Civ.P., the defendant filed a motion to amend the order pursuant to Rule 59(e), Fed.R.Civ.P. On August 21, 1990, prior to the disposition of the motion to amend, the defendant filed his notice of appeal.

3

Rule 4(a)(1) Fed.R.App.P., requires a notice of appeal to be filed within sixty days of the date of entry of the judgment appealed from when the United States is a party. Rule 4(a)(4), however, provides that the aforementioned period is tolled by the timely filing of a motion under Rule 59(e) Fed.R.Civ.P. A notice of appeal filed prior to the disposition of a timely tolling motion shall be of 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, Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).

4

Therefore it is ORDERED that the defendant's appeal is dismissed sua sponte without prejudice to his right to perfect a timely appeal when the district court rules on his motion to amend. Rule 9(b)(1), Rules of the Sixth Circuit.