___________
No. 95-3852
___________
Clifton Berglee, *
*
Appellant, *
*
v. *
*
First National Bank, Brookings, *
South Dakota, *
*
Appellee. *
*
___________
Appeals from the United States
No. 95-3884 District Court for the
___________ District of South Dakota.
Clifton Berglee, * [UNPUBLISHED]
*
Appellee, *
*
v. *
*
First National Bank, Brookings, *
South Dakota, *
*
Appellant. *
___________
Submitted: January 21, 1997
Filed: January 30, 1997
___________
Before HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, Circuit Judges.
___________
PER CURIAM.
In December 1994, Clifton Berglee filed this action against First
National Bank (Bank) in Montana state court; the case was removed to
federal court on diversity grounds and then transferred to the
district court of South Dakota. Berglee filed a second
amended complaint, seeking coercive relief to enforce a prior
declaratory judgment entered by the Montana federal district court
declaring the Bank had made certain disbursements out of Berglee's
account without his authorization; and asserting various tort
claims arising out of the Bank's unauthorized disbursements and the
Montana proceedings.
On August 15, 1995, the district court dismissed Berglee's
tort claims, summarily concluding Berglee was precluded from
raising claims he had failed to raise in the prior litigation;
granted the coercive relief; and awarded Berglee prejudgment
interest from the date Berglee obtained his final declaratory
judgment in Montana district court. On September 5, the Bank moved
alternatively for a new trial or for an order amending the
judgment, pursuant to Federal Rule of Civil Procedure 59. On
September 21, Berglee filed a cross motion to amend the judgment.
On October 2, the court denied these postjudgment motions. On
October 30, Berglee filed his notice of appeal; on November 9, the
Bank filed its notice of cross appeal.
Although neither party addressed the timeliness of this
appeal, we raise sua sponte jurisdictional issues "when there is an
indication that jurisdiction is lacking, even if the parties
concede the issue." See Thomas v. Basham, 931 F.2d 521, 523 (8th
Cir. 1991). As the court entered its final order on August 15, the
Bank filed its motion for a new trial or to amend the judgment on
September 5, and Berglee filed his cross motion to amend the
judgment on September 21, these motions were untimely. See Fed. R.
Civ. P. 59(b) and (e); Sanders v. Clemco Indus., 862 F.2d 161, 168
(8th Cir. 1988) (district court lacks jurisdiction over untimely
Rule 59 motion and ruling thereon is nullity). Moreover, because
these postjudgment motions were untimely, the time for filing a
notice of appeal was not tolled and thus neither party timely filed
-2-
a notice of appeal. We note the district court entered its order
on August 15, Berglee filed his notice of appeal on October 30, and
-3-
the Bank filed its notice of cross appeal on November 9. See Fed.
R. App. P. 4(a)(1) and (4); Sanders, 862 F.2d at 168-70 (thirty-day
appeal period runs from entry of initial judgment when Rule 59
motion is untimely). Because both parties filed untimely
postjudgment motions and notices of appeal, we dismiss for lack of
jurisdiction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-