Gloria Gascon Morris v. Billie C. Morris , 889 F.2d 1088 ( 1989 )

889 F.2d 1088

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Gloria Gascon MORRIS, Plaintiff-Appellee,
v.
Billie C. MORRIS, Defendant-Appellant.

No. 89-3903.

United States Court of Appeals, Sixth Circuit.

Nov. 20, 1989.

1

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and RICHARD SUHRHEINRICH, District Judge*.

ORDER

2

This matter is before the Court on the defendant's response to the show cause order of October 23, 1989.

3

Judgment was entered for the plaintiff on August 31, 1989. On September 5, 1989, the district court, without any intervening motion by the parties, amended its previous judgment to reflect the appropriate starting date for computation of interest. The defendant filed a motion for relief from that judgment on September 13, arguing that the district court was without authority to amend its judgment sua sponte. While that motion was pending, the defendant filed a notice of appeal. In his response to the show cause order, the defendant states he was not certain whether the motion would suspend the time for appeal of the August 31 order. He wishes by this appeal to preserve his right to challenge the order of August 31.

4

A timely motion to set aside a judgment can be properly construed as a motion to alter or amend under Fed.R.Civ.P. 59(e). Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 (6th Cir.1982). Such a motion tolls the time for an appeal, and a notice of appeal filed prior to the disposition of such a motion is of no effect. Fed.R.App.P. 4(a)(4).

5

It is therefore ORDERED that this appeal be dismissed. Rule 9(b), Local Rules of the Sixth Circuit. This dismissal is without prejudice to the defendant's right to perfect a timely appeal of the judgment of August 31 and the amending judgment of September 5 following disposition of the pending motion for relief.

*

The Honorable Richard Suhrheinrich, U.S. District Judge for the Eastern District of Michigan, sitting by designation