(concurring in part; dissenting in part). I agree the trial court erred in holding *556that it could take no action other than following the instructions of the Supreme Court. However, I would hold that the trial court’s denial of plaintiffs motion for summary judgment against defendant-vendor Russell was proper on grounds of res judicata.
"A judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies.” Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975).
The majority states that in order for res judicata to apply, "the precise issue or any point properly belonging to the litigation must be decided”. I respectfully disagree. In Curry, supra, the Supreme Court explicitly rejected such a rule, stating the following:
"During the doctrine’s development some cases held that 'for res judicata to apply, the question must in fact have been litigated in the first proceeding’. Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). That Court then stated:
" 'The correct rule is found in Henderson v Henderson, 3 Hare 100, 115 (67 Eng Rep 313) [1843], and is quoted in Michigan decisions from Harrington v Huff & Mitchell Co, 155 Mich 139, 142 [118 NW 924 (1908)], to Shank v Castle, 357 Mich 290, 295 [98 NW2d 579 (1959)]:
" ' " ’The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’ ” ’ ” 394 Mich at 332. (Emphasis supplied.)
*557It is evident from the foregoing that a particular issue need not be decided for res judicata to apply. Indeed, the issue need not even be raised for res judicata to apply, if it is one which a party should have raised.
In any event there is no doubt that both the issue being raised, and the parties contesting it, are the same in the original suit and the present action. Plaintiffs original complaint against Russell requested specific performance and damages arising out of Russell’s failure to close on time. He seeks those same damages now from Russell.
There was also a decision rendered on the merits. The judgment of the trial court granted plaintiff’s request for specific performance. However, while plaintiff was given a money judgment against defendant Deitz, the request for money damages against defendant Russell was not granted.
Neither plaintiff nor Russell appealed the judgment. The decision of a court having jurisdiction is final, where not appealed, and cannot be collaterally attacked. Gursten v Kenney, 375 Mich 330; 134 NW2d 764 (1965). Delayed appeal may be granted up to 18 months after entry of a judgment. GCR 1963, 803.3, 806.2. Plaintiff knew defendant Deitz had appealed from that portion of the judgment adverse to him. Hence, if plaintiff wished to preserve any rights he felt he had against defendant Russell, the proper procedure was to file an appeal, or at least subsequently request leave to file a delayed appeal. Having failed to do so, plaintiffs rights vis-a-vis Russell were final. See Lesher v Bonner, 269 Mich 124, 131; 256 NW 827 (1934), Bice v Holmes, 309 Mich 110, 112; 14 NW2d 800 (1944).
Even if defendant Russell had appealed from the *558judgment, plaintiff’s failure to file a cross-appeal would preclude him from getting greater relief against Russell than the trial court had granted. Paton v Stealy, 272 Mich 57, 61; 261 NW 131 (1935), Prosecuting Attorney, ex rel MacKenzie v Knight, 266 Mich 567; 254 NW 206 (1934), Bowman v Gork, 106 Mich 163; 63 NW 998 (1895), Heath v Waters, 40 Mich 457, 472 (1879), Match v Hunt, 38 Mich 1, 9 (1878).
In Bowman, supra, the trial court granted plaintiff’s request for specific performance. Defendant appealed from that decision. Plaintiff asked the appellate court for an accounting for the rental value of the property. The Supreme Court refused to give plaintiff such relief because the lower court’s decree contained no such provision and plaintiff had failed to take a cross-appeal.
In the instant case the trial court’s order contained no provision awarding damages to plaintiff against Russell. Plaintiff failed to appeal. Therefore, the appellate courts could not grant plaintiff additional relief, i.e., damages, against Russell. Holman v Moore, 259 Mich 63; 242 NW 839 (1932). I fail to see how the trial court could do on remand what the Supreme Court could not have done on appeal.
There is some question as to whether or not a motion for summary judgment is a sufficient "subsequent action” in which to invoke the doctrine of res judicata since it is not an independent proceeding.
"The doctrine of res judicata generally prevails as to all subsequent actions and proceedings. Indeed, it has even been held that the effect of an adjudication as res judicata is not confined in its operation to subsequent independent proceedings, but also applies to all collateral proceedings in the same action. On the other hand, *559the doctrine of res judicata has been regarded as inoperative where the subsequent proceeding is the same and not a new and different action.” 46 Am Jur 2d, Judgments, § 468, pp 634-635.
It is my opinion that the original judgment should be given res judicata effect in all proceedings which occur after plaintiff has lost his ability to appeal or cross-appeal.
If the Supreme Court had not remanded this case for further proceedings, it would seem that plaintiff would be forced to assert his claim against defendant-vendor in a new action. The original judgment would clearly bar his claim in a new action. The fortuity that the case was remanded for further proceedings on an issue other than defendant-vendor’s liability for damages should not permit plaintiff to escape the bar of the original judgment.
One purpose underlying the doctrine of res judicata is to insure finality of judgment. This purpose would be circumvented if plaintiff is allowed to assert his claim for damages against defendant-vendor years after the entry of a judgment which fully litigated the issue between the same parties.
For the above reasons, I would affirm the trial court’s order denying plaintiff’s motion for summary judgment.