On Petition por a Rehearing.
Elliott, C. J.— It is argued that the appellant’s property should not be subjected to sale, because she wás not liable upon the instrument on which the judgment was founded. This question can not be considered in this collateral proceeding. The judgment is conclusive, both as to her liability *224and. its character. The judgment is an ordinary judgment quod recuperet, and her property was liable to be sold upon -execution to satisfy it.
We can not enter into a consideration of the validity of the judgment, 1st, because the complaint affirms its validity; 2d, because this is a collateral proceeding and a party can only obtain relief from a judgment rendered by a court of competent jurisdiction, by a direct proceeding.
The record affirmatively shows that the levy was vacated by an order of the court, made upon the petition of the administrator of the person who owned the real estate at the time the levy was made, and that all the parties, having an interest in the execution and the land, were before the court. The judgment of a court, having jurisdiction of the subject-matter and of the person, vacating a levy, is conclusive. It is not important how the question came before the court, provided there was jurisdiction and a judgment.
The judgment upon a petition of an administrator for the sale of lands stands upon the same footing, so far as collateral attacks are concerned, as other judgments.
There is nothing in the judgment showing that appellant was a surety, and the rule declared in Johnson v. Harris, 69 Ind. 305, applies only where the question of suretyship has been judicially determined.
It is a familiar rule that a party must recover, if at all, upon the case made by his complaint. A plaintiff can not state one cause of action and recover upon another. The cause of action shown in the appellant’s complaint is, that the judgment described has been satisfied, and this it devolved upon her to establish. This she failed to do, for it is conclusively shown that the levy which she relied upon as a satisfaction of the judgment was no satisfaction. She made a prima facie case when she proved the levy and sale, but this was completely overthrown when it appeared that the circuit court, upon the petition of the administrator of the deceased judgment debtor, had vacated and annulled the levy.
*225All execution defendant is not entitled to have a judgment entered satisfied simply because a levy has been made on property. A levy is only a conditional satisfaction, it is not an absolute satisfaction. In United States v. Dashiel, 3 Wal. 688, it was said of the effect of a levy: “Rightly understood, the presumption is only a prima faeie one in any case, and the whole extent of the rule is that the judgment is satisfied when the execution has been so used as to change the title of the goods.” In Lindley v. Kelley, 42 Ind. 294, it was said: “We have found no authority which holds that a mere levy, without reference to the sufficiency of the property to pay the debt, raises a presumption of satisfaction. None of the decisions assumes that a levy produces any absolute satisfaction. It is a satisfaction sub modo.” In the present case, the evidence shows that the real estate levied on was encumbered, for far more than its value.
Petition overruled.