863 F.2d 49
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William J. PERREAULT, Plaintiff-Appellant,v.Marlene DAYNE;  Leonard Gilman (deceased);  United States ofAmerica, Defendants-Appellees.
No. 88-1511.
United States Court of Appeals, Sixth Circuit.
Nov. 22, 1988.

Before LIVELY and WELLFORD, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

ORDER

1
This matter is before the court upon consideration of the appellees' motion to dismiss the appeal on the grounds that it is premature.  The appellant's response states that the appeal was filed in a timely manner, and that his motion to reconsider did not render the appeal premature.


2
A review of the record indicates that the judgment of the district court was entered on April 29, 1988.  The plaintiff's Fed.R.Civ.P. 59(e) motion was notarized on May 5 and filed May 9, 1988.  The defendants filed a response to the Rule 59(e) motion on May 11, 1988.  It is apparent that the motion was served on the defendants within the ten day period prescribed by Fed.R.Civ.P. 59(e) as computed by Fed.R.Civ.P. 6(a), and thus tolled the appeals period.  Fed.R.App.P. 4(a)(4).  Plaintiff replied to the defendants' May 11 response on May 23, 1988.  A notice of appeal was filed on May 9, 1988.  The Rule 59(e) motion was denied on June 2, 1988.  No new notice of appeal has been filed.


3
This court lacks jurisdiction in the appeal.  Fed.R.App.P. 4(a)(1) provides that a notice of appeal filed before the disposition of a timely Rule 59(e) motion "shall have no effect.  A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion...."  A timely notice of appeal is mandatory and jurisdictional.   Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982);  Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978).


4
Accordingly, it is ORDERED that the motion to dismiss be and hereby is granted.  Rule 8, Rules of the Sixth Circuit.

