Floyd J. Harris, Dale Foltz

798 F.2d 469

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Floyd J. HARRIS, Petitioner-Appellant,
Dale FOLTZ, Respondent-Appellee.

No. 86-1154.

United States Court of Appeals, Sixth Circuit.

June 6, 1986.

1

Before KEITH, KRUPANSKY and GUY, Circuit Judges

ORDER

2

This matter is before the Court upon consideration of appellant's response to this Court's March 20, 1986, order to show cause why the appeal should not be dismissed because of a late filed notice of appeal.

3

It appears from the record that final judgment was entered on January 9, 1986, and that the notice of appeal filed on Tuesday, February 11, 1986, was one day late (the 30th day was Saturday, February 9, so it was due to be filed by Monday, February 10). Rules 4(a) and 26(a),. Federal Rules of Appellate Procedure. Appellant in his response states that he placed his notice of appeal in the mail on February 7. Mailing of a notice of appeal does not constitute filing. Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983).

4

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a) is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016 (6th Cir. 1983). Rule 26(b) specifically provides that this Court cannot enlarge the time for filing a notice of appeal.