Unpublished Dispositionunited States of America, Plaintiff-appellee, Counterdefendant-appellee, v. L. Lea Nabkey, Also Known As Lillian Nabkey;defendant-appellant, Counter Plaintiff-appellant,third Party Plaintiff-appellant,beau Adams, Doing Business As K-h Patterson Company, Thirdparty-appellee, 865 F.2d 261 (6th Cir. 1988)

ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal on the basis that it was untimely filed. The appellant's response states that the appeal was filed in a timely manner.

A review of the record indicates that the district court entered judgment in favor of the plaintiff on March 21, 1988. The third party defendant, Adams, remained a party to the action until September 12, 1988, when the district court granted Adams' motion to dismiss. On September 17, 1988, the defendant-third party plaintiff Nabkey served a motion seeking reconsideration of the September 12 order. This motion was served within the ten day period prescribed by Fed. R. Civ. P. 59(e) as computed by Fed. R. Civ. P. 6(a) and tolled the appeals period. Fed. R. App. P. 4(a) (4). Nabkey filed her notice of appeal on September 30, 1988, seeking review of both the March 21, 1988 and September 12, 1988 orders. The district court denied Nabkey's Fed. R. Civ. P. 59(e) motion on November 7, 1988. No new notice of appeal has been filed.

The appellee's motion to dismiss on the grounds that the notice of appeal was late is not well taken. The March 21, 1988, order was not appealable prior to entry of final judgment. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976); Solomon v. Aetna Life Ins. Co., 785 F.2d 58, 59 (6th Cir. 1986). The final decision of the district court was entered September 12, 1988. A final judgment calls into question all prior rulings and orders. McLaurin v. Fischer, 768 F.2d 98, 101 (6th Cir. 1985).

However, this court lacks jurisdiction in the instant appeal. Fed. R. App. P. 4(a) (4) provides that a notice of appeal filed before the disposition of a timely Fed. R. Civ. P. 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). The September 30 notice of appeal filed prior to the entry of the November 7, 1988, order denying the Rule 59(e) motion was premature.

Accordingly, the appellee's motion to dismiss the appeal on the basis of a late notice of appeal is denied, and it is ORDERED that the appeal be and is hereby dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.