What is the current state of the law on appeal?

'In MacKenzie v. Angle, 82 Cal.App.2d 254 at page 263, 186 P.2d 30, 35, this court said: 'A rule, early established and long adhered to in the courts of this state, is that questions not raised in a lower court will not be considered on appeal. (Citing cases.)' As stated in 3 Cal.Jur.2d, Appeal and Error, section 140: 'The rule is founded upon considerations of practical necessity in the orderly administration of the law and of fairness to the court and the opposite party, and upon the principles underlying the doctrines of waiver and estoppel.'

'And as this court said in Munfrey v. Cleary, 75 Cal.App.2d 779, at page 785, 171 P.2d 750, at page 753: 'Also as a general rule where a case has been tried upon one theory that theory must be adhered to on appeal, and a party who has tried his case wholly or in part on a certain theory, which theory was acted upon by the trial court, cannot, on appeal, change his position and adopt a different theory, since to do so would be unfair to the trial court and to opposing counsel. (Citing cases.)''

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