calvin-buchanan-allen-barnett-james-harrison-earl-elliott-willie , 911 F.2d 731 ( 1990 )

911 F.2d 731

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Calvin BUCHANAN, Allen Barnett, James Harrison, Earl
Elliott, Willie Stewart, Rev, David Buchanan, Plaintiffs,
Eric D. Stoner, Plaintiff-Appellant,
v.
Wallace WILKINSON, John T. Wigginton, Al Parke, E. McKnight,
Barbara Hickey, Defendants-Appellees.

No. 90-5367.

United States Court of Appeals, Sixth Circuit.

Aug. 21, 1990.

Before RYAN and ALAN E. NORRIS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of the motion to withdraw Stewart as an appellant. The appellee has not responded.

2

A review of the documents before the court indicates that the civil action was dismissed by judgment entered February 20, 1990. Motions for an in camera hearing and for disqualification were served on February 23, 1990, and filed on February 27, 1990. Stoner filed a notice of appeal on March 2, 1990.

3

A motion which seeks reconsideration of a judgment and which is served within ten days of entry of a judgment is properly construed as a time-tolling Fed.R.Civ.P. 59(e) motion. These motions were served within ten days of entry of the judgment and are construed as motions to reconsider. Thus, these motions tolled the appeal period. See Fed.R.App.P. 4(a)(4); Marrical v. Detroit News, Inc. 805 F.2d 169, 171 (6th Cir.1986) (per curiam). 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. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The district court has not ruled on the motions for in camera hearing and disqualification.

4

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. The motion to withdraw Stewart as an appellant is denied.