Morris May v. Pro-Guard, Inc. , 859 F.2d 153 ( 1988 )

859 F.2d 153

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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

No. 88-5702.

United States Court of Appeals, Sixth Circuit.

Sept. 21, 1988.

Before BOYCE F. MARTIN, Jr. and DAVID A. NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of the appellant's response to this court's July 15, 1988, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction. Appellant's responses state that the appeal is timely because the district court was divested of jurisdiction to rule upon his civil action while his interlocutory appeal was pending before this court in Case No. 87-5861. Appellant further seeks award of attorneys fees.

2

It appears from the record that the judgment was entered on October 7, 1987. The notice of appeal filed on June 13, 1988, was over six months late.

3

The court lacks jurisdiction in this appeal. The appellant's filing of his prior appeal in Case No. 87-5861 did not divest the district court of jurisdiction. A panel of this court has previously determined that the prior appeal was taken from a non-appealable order. See May v. Pro-Guard, Inc., No. 87-5861 (6th Cir. unpublished opinion Jan. 19, 1988), cert. denied, 108 S.Ct. 2041 (1988). The filing of a notice of appeal from a non-appealable order does not divest the district court of jurisdiction. See Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir.1981), cert. denied, 454 U.S. 1152 (1982).

4

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981, 982 (6th Cir.1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir.1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983). Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

5

Accordingly, it is ORDERED that the motion for attorneys fees be denied and the appeal be and hereby is dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.