In Re James Harold Cossett, Rosa Ann Cossett, Debtor , 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Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
IN RE JAMES HAROLD COSSETT, ROSA ANN COSSETT, DEBTOR.

NO. 85-3482

United States Court of Appeals, Sixth Circuit.

8/29/85

S.D.Ohio

DISMISSED

ORDER

BEFORE: MARTIN, JONES and WELLFORD, Circuit Judges.

1

This matter is before the Court upon the defendant-appellee's motion to dismiss and the plaintiff-appellant's memorandum in opposition. The plaintiff-appellant also seeks a judgment construing what acts constitute the unauthorized practice of law.

2

The plaintiff-appellant filed a notice of appeal on June 20, 1985 from the district court's verbal order of May 18, 1985, refusing to stay the public sale of the Cossett house in connection with bankruptcy proceedings. Normally, a notice of appeal, filed after the 'announcement of a decision or order but before the entry of the judgment or order' would be treated as being 'filed after such entry and on the day thereof.' Rule 4(a)(2), Federal Rules of Appellate Procedure. However, before the district court entered its order in writing, the plaintiff-appellant timely filed an application for reconsideration, which tolled appeal time. Rule 4(a)(4), Federal Rules of Appellate Procedure. Because plaintiff-appellant filed a notice of appeal before the district court denied both the motion for stay and the motion for reconsideration, on July 9, 1985, the notice was null and of no effect. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). The timely filing of a notice of appeal is both mandatory and jurisdictional, so this Court does not have jurisdiction of the appeal. Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 264 (1978); E.E.O.C. v. K-Mart Corp., 694 F.2d 1055, 1060 (6th Cir. 1982). Further, even if the appeal had been timely filed, in bankruptcy matters, this Court has jurisdiction to review only 'final decisions, judgments, orders and decrees' of the district court. 28 U.S.C. Sec. 158(d). The district court's order was clearly interlocutory. In re Teleport Oil Co., 759 F.2d 1376, 1378 (9th Cir. 1985).

3

Accordingly, it is ORDERED that defendant-appellee's motion to dismiss is granted. It is further ORDERED that plaintiff-appellant's motion for a declaratory judgment is denied.