bill-v-yuhas-elizabeth-f-yuhas-william-jp-yuhas-sandra-j-yuhas-and , 844 F.2d 790 ( 1988 )

844 F.2d 790

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Bill V. YUHAS, Elizabeth F. Yuhas, William J.P. Yuhas,
Sandra J. Yuhas, and Toby Ira Yuhas, Plaintiffs-Appellants,
v.
Gary BENEDIX, Dean Bussler, Wilbur Breseman, Donald Foust,
Russel Riley Goodenough, Robert W. Hardin, William Hess,
Carl Higley, Sr., Karen Jackson, Edwin G. Johnson, III,
Terry L. Kuseski, Ronald Plether, Lowell McMillen, Kenneth
R. Meyers, Marshall Shrug, Dennis Stamp, Steve Toth, Johnie
A. Rodebush, Albert Rosebush, Bradley Walker, (as Cass
County Commissioners and in Their Individual Capacity),
Robin Bonnie, Sheriff Jim Northrup, Patrick Fetherston,
Michael Grice, Leyor McNeary, Ken Poe, Earl Rumsey, Raymond
Schantz, (as Cass County Officials and in Their Individual
Capacity), D.R. Deming (Department of Agriculture for State
and in His Individual Capacity), Joseph Underwood, Marjorie
Federowski, Robert Hartranft, Defendants-Appellees,
Paul Maloney, Susan Dobrich, Michael Dodge, Mark Stroub,
Richard Boezman, Diane Curtis, Defendants.

No. 87-2073.

United States Court of Appeals, Sixth Circuit.

April 8, 1988.

Before KEITH and ALAN E. NORRIS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of appellees' motion to dismiss the appeal for lack of jurisdiction on the basis that the notice of appeal was late and that it was signed by only one pro se appellant. Appellants' response states that the appeal is timely.

2

A review of the record shows that the district court's judgment was entered on August 31, 1987. Appellants' Fed.R.Civ.P. 59(e) motion to reconsider, served September 18, 1987, was not served within the ten-day period as computed pursuant to Fed.R.Civ.P. 6(a). The untimely Fed.R.Civ.P. 59(e) motion failed to toll the appeals period as provided by Fed.R.App.P. 4(a)(4). The district court denied appellants' Fed.R.Civ.P. 59(e) motion by order entered September 30, 1987. Appellants filed a notice of appeal on October 29, 1987 from the September 30, 1987 order denying the motion to reconsider.

3

Although the notice of appeal was filed from the September 30, 1987, order denying reconsideration, such an order is not appealable. Carpenter v. Klosters Rederi, 604 F.2d 11 (5th Cir.1979); Walker v. Matthews, 546 F.2d 814, 817 n. 1 (9th Cir.1976). A notice of appeal can be treated as an appeal from an appealable order only when the motion for reconsideration of an appealable order order was timely served and tolled the appeals period. Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78 (6th Cir.1973). Having concluded above that such a motion was not timely served,

4

It is ORDERED that the motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.