[53 Del. 300] David B. Coxe, Jr., and Emmett J. Conte, Jr., of Coxe, Booker, Walls & Cobin, Wilmington, for plaintiffs.
Raymond L. Becker and Wilfred J. Smith, Jr., Wilmington, for defendant.
On Plaintiffs' motion to amend ad damnum clause of complaint and on defendant's motion for a new trial.
Plaintiffs, Joanne Long and Charles Long, her husband, filed an action in the Superior Court to recover damages for personal injuries to both plaintiffs, and for medical expenses and hospital bills incurred by Charles Long for himself and his wife, which resulted from the alleged negligence of the defendant, Anna E. Lee. In the ad damnum clause, Joanne Long demanded judgment against the defendant in the sum of $5,000, and the plaintiff Charles Long demanded judgment for $1,000. Defendant admitted liability. The question on the amount of damages was submitted to a jury, and the jury returned verdicts of $10,000 for Joanne Long and $500 for Charles Long. Immediately after the verdicts, defendant gave notice of her intention to move for a new trial against plaintiff Joanne Long, and made no motion to arrest or stay the entry of judgment in accordance with Rule 58 of the Superior [53 Del. 301] Court Rules, Del.C.Ann., whereupon both judgments were forthwith entered upon the verdicts.
On May 13, 1960, the plaintiff Joanne Long moved to amend the ad damnum clause of her complaint by changing her demand from $5,000 to $10,000 so that the demand in the complaint would correspond with the verdict awarded by the jury. The verdict of $500 for Charles Long is not objected to by either party, and is therefore not an issue herein.
On May 18, 1960, and within the 10 day period prescribed by Rule 59 of the Superior Court Rules, defendant filed her motion for a new trial against Joanne Long on two grounds: (1) That the verdict exceeded the amount demanded by plaintiff in her complaint; and (2) that the verdict was excessive under the evidence.
Defendant opposes plaintiff's motion to amend on the following grounds: (1) That the Superior Court by virtue of Article 4, Section 21, of the Delaware Constitution, Del.C.Ann., is without power to amend the pleadings after judgment has been entered; and (2) assuming, without admitting, that the Court has the power to permit this amendment, the Court should, in its discretion, refuse to allow the amendment.
Article 4, Section 21, of the Delaware Constitution provides that:
'In civil causes, when pending, the Superior Court shall have the power, before judgment, of directing, upon such terms as it shall deem reasonable, amendments in pleadings * * *, so that by error in any of them, the determination of causes, according to their real merits, shall not be hindered.' (Emphasis supplied.) 
[53 Del. 302] The determination of the extent of the power of the Superior Court to permit amendments depends upon the meaning of the words 'before judgment' as used in Article 4, Section 21, of the Delaware Constitution. In the present case, the verdict was rendered and the judgment for Joanne Long for $10,000 was entered forthwith by reason of Rule 58 and also because the plaintiff, without objection, requested the immediate entry of judgment.
'Judgment', as used in Rule 54(a) of the Superior Court Rules, means 'any order from which a writ of error or appeal lies'. The use of the term 'judgment' ordinarily implies a final judgment, Hazzard v. Alexander, 6 W.W.Harr. 512,178 A. 873, 875, and defendant herein concedes that under our constitutional provision this Court may permit pleadings to be amended before final judgment. See
State ex rel. Brumley v. Jessup & Moore Paper Co., 3 Boyce 159,82 A. 540, 541.  Therefore, 'before judgment', as used in [53 Del. 303] Article 4, Section 21, of our Constitution, means 'before final judgment'. Consequently, it is within the discretion of the trial court whether to allow amendments to pleadings at any time before final judgment  if, in its discretion, justice so requires. See State for Use of Godwin v. Collins, 1 Har. 216, 218.
The issue is, therefore, whether the judgment entered is a final judgment so as to bar any subsequent amendment to the complaint by reason of Section 21, Article 4, of the Delaware Constitution. Defendant argues that the judgment entered herein is a final judgment. The judgment entered of record is for $10,000. If this judgment were a final one, the judgment for $10,000 would stand, since judgment in excess of the ad damnum is not a void judgment; it is a voidable judgment. Sullivan v. Jordan,310 Mass. 12, 36 N.E.2d 387, 389. This judgment stands until it is modified, vacated or set aside in proceedings provided by law to accomplish this purpose. Defendant does not want this judgment for $10,000 to stand; she has moved for a new trial. In reality, defendant has moved to alter or amend the judgment in accordance with Rule 59(e) or has moved for relief from the judgment pursuant to Rule 60 of the Superior Court Rules. Even though defendant has not asked for this specific relief, it [53 Del. 304] is clear she so intended when she moved for a new trial; otherwise, the judgment for $10,000 would remain undisturbed.
A judgment cannot be final as long as a motion to alter or amend the judgment is pending, and an appeal taken before the disposition of such a motion is premature. Stevens v. Turner, 7 Cir.,222 F.2d 352,
354. Similarly, in Trowell v. Diamond Supply Co., 8 Terry 422,91 A.2d 797, 800, our Supreme Court held that a judgment is not appealable until a timely motion for a new trial has been decided, because so long as the motion is pending, the lower court retains jurisdiction of the cause, and, for the purpose of appeal, the character of finality does not attach to the judgment.
Since defendant's motion to alter the judgment is presently before this Court for decision, the judgment cannot be said to be final. Consequently, the bar of Article 4, Section 21, of the Delaware Constitution, restricting amendments to the time 'before judgment', has no application because the judgment does not become final so long as defendant's motion is pending before this Court.
Furthermore, the omission from the Superior Court Rules of subsection (c) of Rule 54 does not divest this Court of its power to amend the ad damnum in a Superior Court action. It is true that recent decisions in the federal courts have permitted the ad damnum to be amended after verdict or judgment by virtue of Federal Civil Rule 54(c), 28 ...