It is insisted that this court, in rendering its opinion, overlooked the cases of Stockwell v. Bates, 10 Abbot's Pr. (N. Y.) 381, and Paulus v. South Dakota, 52 N.D. 84 (201 N.W. 867). Both were cited by counsel in their original brief, and were by this court taken into consideration in writing the opinion. But to our minds the facts were so different from the facts of the instant case that we did not deem it necessary to comment upon them. In the Stockwell case the State of Illinois had funds on deposit in the State of New York. The State treasurer of Illinois, being found in New York, was served with process of garnishment by an alleged debtor of Illinois. In the opinion Judge Cardozo stated: "When an individual is liable to be sued, and a State has any interest in the litigation it may be made a party, to give it an opportunity to appear, if it chooses; but I find no case which will justify, in a suit against a state, upon a cause of action solely against it, the joinder of a merely nominal party, against whom no cause of action exists, and no judgment can be had, so as to attach money of the State, and thereby coerce its appearance." We fail to see the application of the facts of that case to the case at bar. To our way of thinking the eminent jurist ruled to the contrary of the contention of the plaintiffs in error. He specifically said in that opinion that a State which has any interest in the litigation "may be made a party," and "may appear if it chooses," where it is joined with an individual upon whom service is perfected. If a State may be made a party, in such a case a judgment may be entered against a State after it has been made a party, whether it appears or not. But of course a State can not be made a party in a case by serving an individual which has no interest in the subject-matter. In the case under consideration the eminent jurist simply held that a State could not be brought into court and made a party by process of garnishment served on one of its subjects not interested in the subject-matter. In the instant case the State of Florida is made a party by seizure of the res under an attachment. If the ground of attachment is legal, the plaintiffs in error in this case are legally made parties as to the res, and they may or may not appear, as Judge Cardozo held in the Illinois case. We concede that there is no way of forcing an appearance, and that service of some kind by attachment of the res as in the instant case, or *Page 361 otherwise as provided by law, must be perfected before a party is made; and after such seizure or service, not only in this nature of case, as at bar, but in all cases, the court is not concerned whether the party thus brought into court appears or not.
As to the Paulus case, supra, the facts were vastly different from the facts of the instant case. We will not attempt to detail them. In the opinion the court said that "this suit . . it must be remembered, is brought by a citizen of South Dakota." In this case it was held that on the principles of comity the courts of North Dakota would not entertain a suit brought in the courts of North Dakota by a citizen of South Dakota against his own State. This case is very interesting. The court stated that the situation was delicate under its facts, and emphasized the feature above pointed out. It went further and intimated that its decision might have been different but for the fact that the State of South Dakota had made ample provision for the protection of its citizens working in the coal mines of North Dakota. In substance the court reasoned that the laws of South Dakota had made ample provision to protect its citizens who were working in its mines in North Dakota. In the instant case, eminent counsel for the State of Florida did not point out any provision whereby the Durham Iron Company Inc., a corporation of this State, could obtain redress through any court in the State of Florida or elsewhere; but they argue, by innuendo, that it should seek relief in the legislature of Florida. They not only contend that the Durham Iron Company Inc. has no right to sue for its debt, which the State of Florida owes, in the courts of the State of its own "birth," but that it has no right in any court, not even in the State of Florida, since Florida has provided no judicial forum where such rights may be adjudicated. We can readily understand, under the comity rule, why no State should entertain the petition of a foreign citizen against his own State. To entertain such causes a citizen of Georgia, feeling himself aggrieved, could cross the line into Tennessee or some other State and attach property belonging to Georgia, and thereby subject his own State to a suit prohibited by the laws of Georgia; but such are not the facts under consideration in the case at bar.
But it is further contended that the debt involved shows no causal connection with the property attached, and that all the facts show that the property involved and the debt alleged to be due *Page 362 have to do with the same institution. We do not think it makes any difference that a piece of property was attached other than the property which is the subject-matter of the debt. This is true even assuming that the boilers are the subject-matter of the alleged debt. Nor do we think it makes any difference even if it be conceded that a contract involving the boilers and the debt was one to be performed according to the laws of the State of Florida. This would not affect the jurisdiction, but would only determine the laws to be applied in determining the substantial rights as between the parties. We are dealing here with the principle of lex fori, and not lex loci contractus. The latter is defensive as to substantive rights arising under the contract.
In conclusion, it must be remembered throughout that the sovereignty of the State of Florida is not attacked by the defendant in error. But the State of Florida itself is seeking to raise the issue within this State against a subject of this State. It is no answer for Florida to contend affirmatively that the State of Georgia alone, and not one of its subjects, is the only party that can combat this asserted defense. The State of Georgia is not concerned, and neither is the defendant in error, with the sovereignty of Florida, in the courts of the State of Georgia. Therefore, on the question whether a citizen of Georgia, in this case the Durham Iron Company Inc., has any interest or right to question either the fact or existence of the sovereignty of Florida in Georgia, in owning land in Georgia for governmental functions of Florida, and whether such issues are for question only by the sovereign State of Georgia, acting through its proper officers, we think that in a case of the character before us, when Florida sets up her sovereignty as a fact, and therefore as immunity in this cause defensively to defeat it, the citizen answering such defense has a right to challenge such assertion of sovereignty on her part to that extent, and without calling on Georgia to assist him.
Rehearing denied. Broyles, C. J., and MacIntyre, J., concur. *Page 363