Andrew B. Ely Ely El v. State of Ohio, Arnold R. Jago, Supt. Captain Swigert George Smith Mr. Beechold Mr. Tickle , 772 F.2d 906 ( 1985 )

772 F.2d 906

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
ANDREW B. ELY ELY EL, PLAINTIFF-APPELLANT,
v.
STATE OF OHIO, ARNOLD R. JAGO, SUPT.; CAPTAIN SWIGERT;
GEORGE SMITH; MR. BEECHOLD; MR. TICKLE,
DEFENDANTS-APPELLEES.

NO. 85-3226

United States Court of Appeals, Sixth Circuit.

8/2/85

S.D.Ohio

APPEAL DISMISSED

ORDER

BEFORE: ENGEL, JONES and KRUPANSKY, Circuit Judges.

1

This matter is before the Court upon consideration of the appellee's motion to dismiss, response to this Court's show cause order and the district court record corrected upon remand.

2

It appears from the record that the judgment was entered January 22, 1985. The notice of appeal filed on March 15, 1985 was 22 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure. The March 15, 1985, notice of appeal was docketed in this Court as appeal number 85-3226. Upon remand, the district court filed a second notice of appeal nunc pro tunc on February 6, 1985. The timely filed February 6, 1985, notice of appeal was docketed as appeal no. 85-3488.

3

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

4

Accordingly, it is ORDERED that the appeal number 85-3226 be and it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.

5

It is further ORDERED that the motion of the appellee to dismiss appeal number 85-3226 be and hereby is denied as not well taken.