In Re: Adolph and Germaine Jelinek, Debtors, Roy Wasche, Liquidating Agent v. Adolph Jelinek, Germain Jelinek , 986 F.2d 503 ( 1993 )

986 F.2d 503

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
In re: Adolph and Germaine JELINEK, Debtors, Roy Wasche,
Liquidating Agent, Plaintiff-Appellee,
v.
Adolph JELINEK, Defendant-Appellant,
Germain JELINEK, Defendant.

No. 92-3053.

United States Court of Appeals,
Eighth Circuit.

Submitted: January 6, 1993.
Filed: February 3, 1993.

Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

1

Adolph Jelinek appeals from the district court's1 order denying his motion to vacate the court's earlier order dismissing as moot his appeal from the bankruptcy court. We affirm.

2

The district court apparently construed the motion to vacate as a timely-filed motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). See Jackson v. Schoemehl, 788 F.2d 1296, 1298 (8th Cir. 1986) (motion which questions correctness of judgment treated as Rule 59(e) motion). Because a timely Rule 59(e) motion tolls the thirty-day period for filing a notice of appeal, and because Jelinek timely appealed the denial of the motion, we have jurisdiction to consider the merits of the dismissal. See id. at 1298-99.

3

We conclude that the district court did not err in dismissing the appeal as moot. See In Re Van Iperen, 819 F.2d 189, 191 (8th Cir. 1987) (per curiam) (court is powerless to rescind sale when debtor fails to obtain stay pending appeal of bankruptcy court order). Jelinek's argument that the liquidating plan was null and void was considered and rejected by this court in a prior appeal. Jelinek v. Federal Land Bank of St. Paul, No. 89-5270, slip op. at 3 (8th Cir. Nov. 28, 1990) (unpublished per curiam). Jelinek's jurisdictional argument lacks merit. See 28 U.S.C. § 1334(d) (district court in which bankruptcy case is commenced has exclusive jurisdiction of all property, wherever located, of debtor or debtor estate). We deny the liquidating agent's pending motion to strike portions of Jelinek's appendix because we considered this appeal on the district court file.

4

Accordingly, we affirm.

1

The Honorable Patrick A. Conmy, Chief Judge, United States District Court for the District of North Dakota