Peter Filipas v. Workmen's Compensation of the Industrial Commission of Ohio Summit County Commissioners , 843 F.2d 1391 ( 1988 )

843 F.2d 1391

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Peter FILIPAS, Plaintiff-Appellant,
v.
WORKMEN'S COMPENSATION OF the INDUSTRIAL COMMISSION OF OHIO;
Summit County Commissioners, Defendants-Appellees.

No. 87-3969.

United States Court of Appeals, Sixth Circuit.

March 31, 1988.

Before NATHANIEL R. JONES, MILBURN and BOGGS, Circuit Judges.

ORDER

1

This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

2

A review of the record reflects that the judgment was entered September 23, 1987. A motion for relief pursuant to Fed.R.Civ.P. 60(a) was served on September 26, 1987, and filed September 25, 1987. That motion sought to correct clerical errors and for the district court to review the record and reconsider its decision. A motion served within 10 days of entry of the judgment as computed by Fed.R.Civ.P. 6(a) is properly construed as a time-tolling Fed.R.Civ.P. 59(e) motion. Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir.) (en banc), cert. denied, --- U.S. ----, 107 S.Ct. 398 (1986); Cosgrove v. Smith, 697 F.2d 1125 (D.C.Cir.1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37 (2d Cir.1982); Huff v. Metropolitan Life Ins. Co., 675 F.2d 119 (6th Cir.1982); Miller v. Leavenworth-Jefferson Elec. Co-op., 653 F.2d 1378 (10th Cir.1981); Smith v. Hudson, 600 F.2d 60 (6th Cir.), cert. dismissed, 444 U.S. 986 (1979). The timely Fed.R.Civ.P. 59(e) motion tolled the appeals period as provided by Fed.R.App.P. 4(a)(4). The October 20, 1987, notice of appeal from the September 23, 1987, judgment is premature. At the time the notice of appeal was filed, the Fed.R.App.P. 59(e) motion had not been ruled upon. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) 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. Acosta v. Louisiana Dep't of HHR, --- U.S. ----, 106 S.Ct. 2876 (1986); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam). From all that appears in the record, the Rule 59(e) motion may not yet have been ruled upon. If so, any party wishing to appeal must wait until that motion is ruled upon, and then file an appeal within 30 days, pursuant to Fed.R.App.P. 4(a)(4).

3

It is ORDERED that the appeal be and hereby is dismissed for lack of jurisdiction.