United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 ___________

 No. 98-1282

 ___________

Brian Webb, *

*

Appellant, *

*

v. *

*

Horace Mann and Companies, *

*

Appellee. *

 ___________

Appeals from the United States

 No. 98-1393 District Court for the

 ___________ Eastern District of Arkansas.

 [UNPUBLISHED]

Brian Webb, *

*

Appellee, *

*

v. *

*

Horace Mann and Companies, *

*

Appellant. *

___________

Submitted: February 11, 1999

Filed: July 6, 1999

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1The Honorable Roger L. Wollman became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 24, 1999.

2The Honorable Stephen M. Reasoner, United States District Judge for the

Eastern District of Arkansas.

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Before WOLLMAN,1 LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Brian Webb filed this state law breach of contract claim against Horace Mann

and Companies to recover under a homeowner’s insurance policy after a fire destroyed

his home. The case was removed to federal court pursuant to 28 U.S.C. § 1441(a). On

September 12, 1997, a jury returned a verdict in favor of Webb and awarded $97,267

in damages. Judgment was entered on the verdict on October 8, 1997. Horace Mann

then filed a renewed motion for judgment as a matter of law and a motion for new trial

on October 20, 1997. The district court2 denied the motion for judgment as a matter

of law, but granted the motion for new trial and set aside the judgment. Webb appeals

the grant of a new trial, and Horace Mann cross-appeals the denial of its motion for

judgment as a matter of law. We dismiss the appeal for want of jurisdiction.

We have jurisdiction only over appeals from final orders. See 28 U.S.C. § 1291.

An order granting a new trial issued within the district court’s jurisdiction is not

appealable. See Peterman v. Chicago Rock Island and Pacific R.R. Co., 493 F.2d 88,

89 (8th Cir. 1974); General Motors Corp. v. Lord, 488 F.2d 1096, 1098-99 (8th Cir.

1973). 

Webb argues that the district court was without jurisdiction to enter an order for

a new trial because Horace Mann submitted its post-trial motions more than ten days

after the judgment was entered. See Fed. R. Civ. P. 50(b), 59(b) (requiring that a

motion for new trial be filed no later than ten days after entry of judgment). Webb’s
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argument, however, overlooks the fact that “[w]hen the period of time prescribed or

allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall

be excluded in the computation.” Fed. R. Civ. P. 6(a). Thus, the motion for new trial

was timely filed and the district court acted within its jurisdiction in granting it.

When a district court denies a motion for judgment as a matter of law but grants

a motion for new trial, the order is not appealable. See 9A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2540 (2d ed. 1994). In the absence

of an appealable order, “it necessarily follows that the entire case rests in the trial

court.” Gallon v. Lloyd-Thomas Co., 261 F.2d 26, 28 (8th Cir. 1958). Accordingly,

the cross-appeal must also be dismissed.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.