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2d 596
Unpublished Disposition
Appeal from the United States District Court for the District of Maryland,
at Baltimore. Frederic N. Smalkin, District Judge. (CA-90-2501-S)
Pervis McKenney, appellant pro se.
D.Md.
DISMISSED.
Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit
Judges.
PER CURIAM:
DISMISSED.
A post-judgment motion filed within ten days of judgment which calls into
question the correctness of the judgment is to be treated as a motion under Rule
59, Fed.R.Civ.P. Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978). The
thirty-day period for noting an appeal does not begin to run until the district
court rules on the Rule 59 motion
McKenney filed a motion to strike within ten days of the judgment which called
into question the correctness of the judgment; consequently, the district court
was in error in treating it as a Rule 60 motion. Properly considered as a Rule 59
motion it tolled the running of the appeal period until October 9, the day that
the court's ruling on the motion was entered. McKenney's notice of appeal was
filed November 9 and was timely under Houston v. Lack, 487 U.S. 266 (1988).
This case is therefore properly before the Court on the merits.